Opinion
Case Number: 2:06-CV-15380
08-20-2012
RONALD DALE MCBRIDE, Petitioner, v. BLAINE LAFLER, Respondent.
HONORABLE VICTORIA A. ROBERTS
OPINION AND ORDER
1) CONSTRUING PETITIONER'S MOTION FOR CERTIFICATE OF APPEALABILITY AS MOTION FOR RECONSIDERATION;
(2) DENYING MOTION FOR RECONSIDERATION;
(3) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL; and
(4) DENYING MOTION FOR APPOINTMENT OF COUNSEL
Petitioner Ronald McBride, Jr., filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner, a state inmate incarcerated at the Carson City Correctional Facility in Carson City, Michigan, challenged his convictions for first- and second-degree criminal sexual conduct. On May 3, 2012, the Court issued an "Opinion and Order Denying Petition for Writ of Habeas Corpus and Denying Certificate of Appealability." Petitioner has filed a "Motion for Certificate of Appealability." Because the Court already has denied a certificate of appealability (COA), the Court construes Petitioner's motion as requesting reconsideration of that denial. Petitioner also has filed a "Motion to Proceed In Forma Pauperis on Appeal" and a "Motion for Appointment of Counsel."
Motions for reconsideration may be granted when the moving party shows (1) a "palpable defect," (2) by which the court and the parties were misled, and (3) the correction of which will result in a different disposition of the case. E.D. Mich. L.R. 7.1(h)(3). A "palpable defect" is a "defect which is obvious, clear, unmistakable, manifest or plain." Olson v. The Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich. 2004).
Petitioner asks the Court to reconsider its denial of a certificate of appealability. The Court declined to issue a COA because reasonable jurists could not "debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner" or that the issues presented were "adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted). Petitioner's arguments for reconsideration amount to a disagreement with the Court's decision. A motion predicated on such an argument is an insufficient ground upon which to grant reconsideration. L.R. 7.1(h)(3); see also, Meekison v. Ohio Dept. of Rehabilitation and Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998). Petitioner fails to demonstrate that the Court's decision denying a COA was based upon a palpable defect by which the Court was misled.
Petitioner has filed a "Motion to Proceed In Forma Pauperis on Appeal." Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a district-court action who desires to appeal in forma pauperis must file a motion in the district court. An appeal may not be taken in forma pauperis if the court determines that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). "[T]he standard governing the issuance of a certificate of appealability is more demanding than the standard for determining whether an appeal is in good faith." U.S. v. Cahill-Masching, 2002 WL 15701, * 3 (N.D. Ill. Jan. 4, 2002). "[T]o determine that an appeal is in good faith, a court need only find that a reasonable person could suppose that the appeal has some merit." Walker v. O'Brien, 216 F.3d 626, 631 (7th Cir. 2000). Although the Court held that a certificate of appealability should not issue, the Court concludes that an appeal in this case may be taken in good faith. The Court, therefore, grants Petitioner's "Motion to Proceed In Forma Pauperis on Appeal."
Finally, Petitioner has filed a "Motion for Appointment of Counsel." However, on May 24, 2012, he filed a notice of appeal. The filing of a notice of appeal "confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982); Workman v. Tate, 958 F.2d 164, 167 (6th Cir.1992). Petitioner's notice of appeal divests this Court of jurisdiction to consider his motion for the appointment of appellate counsel. See Hawkins v. United States, 2011 WL 665475, *1 (S.D. Ill. Feb. 14, 2011) (denying motion for appointment without prejudice because notice of appeal filed in Seventh Circuit Court of Appeals divested district court of jurisdiction to address motion); Brinton v. Gaffney, 560 F. Supp. 28, 29-30 (E.D. Pa. 1983); Grizzell v. Tennessee, 601 F.Supp. 230, 232 (M.D. Tenn. 1984)).
Accordingly, the Court DENIES Petitioner's "Motion for Certificate of Appealability" [dkt. # 43], which the Court has construed as a "Motion for Reconsideration." The Court DENIES WITHOUT PREJUDICE Petitioner's "Motion for Appointment of Counsel" [dkt. # 45].
The Court GRANTS Petitioner's "Motion to Proceed In Forma Pauperis on Appeal" [dkt. #44].
SO ORDERED
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Victoria A. Roberts
United States District Judge
The undersigned certifies that a copy of this document was served on the attorneys of record and Ronald Dale McBride by electronic means or U.S. Mail on August 20, 2012.
Carol A. Pinegar
Deputy Clerk