Marshek v. Marberry

Full title: TYSON MARSHEK, Petitioner, v. H.J. MARBERRY, Respondent

Court: United States District Court, E.D. Michigan, Southern Division

Date published: Jan 25, 2007

Case No. 06-CV-12902 (E.D. Mich. Jan. 25, 2007)

Opinion

Case No. 06-CV-12902.

January 25, 2007

ORDER VACATING ORDER DENYING A CERTIFICATE OF APPEALABILITY

AVERN COHN, District Judge

On January 17, 2007, the Court issued an order granting Petitioner's motion to proceed in forma pauperis and denying a certificate of appealability. The first paragraph of the Order states that "[t]his is a habeas case under 28 U.S.C. § 2254" and that Petitioner is "a state prisoner." This is incorrect. Rather, as stated in the order denying the petition, filed December 18, 2006, this is a habeas case under 28 U.S.C. § 2241 and Petitioner is a federal prisoner.

Because this is a case under § 2241 by a federal prisoner, a certificate of appealability is not required in order to appeal.See Witham v. United States, 355 F.3d 501, 504, (6^th Cir. 2004) (stating that "[t]he statute [§ 2241] does not require a certificate of appealability for appeals from denials of relief in cases properly brought under § 2241, where detention is pursuant to federal process.")

Accordingly, the portion of the Court's January 17, 2007 order denying a certificate of appealability is VACATED. The portion of the Court's order granting Petitioner in forma pauperis status on appeal remains.

SO ORDERED.