Opinion
CASE NO. 2:08-12804
01-25-2013
PHILLIP J. REED, Petitioner, v. NICK LUDWICK, Respondent.
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION AND
DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION FOR A
CERTIFICATE OF APPEALABILITY AND MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
Phillip J. Reed, ("petitioner"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenged his conviction for first-degree felony murder, Mich. Comp. Laws § 750.316(1)(b); and armed robbery, Mich. Comp. Laws § 750.529. On December 11, 2012, this Court denied petitioner's application for a writ of habeas corpus and declined to issue a certificate of appealability or to grant leave to appeal in forma pauperis. Reed v. Ludwick, No. 08-CV-12804; 2012 WL 6184317 (E.D. Mich. December 11, 2012). Petitioner has now filed a motion for a certificate of appealability and a motion to proceed in forma pauperis on appeal, which this Court will treat in part as a motion for reconsideration of the Court's previous decision to deny petitioner a certificate of appealability or leave to appeal in forma pauperis. For the reasons that follow, the Court will deny petitioner's motion for reconsideration. The Court will further order that petitioner's motion for a certificate of appealability and the motion to proceed in forma pauperis on appeal to be transferred to the United States Court of Appeals for the Sixth Circuit.
U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for reconsideration. In order for a court to grant a motion for reconsideration, the movant must show (1) a palpable defect; (2) that misled the court and the parties; and (3) that correcting the defect will result in a different disposition of the case. Sigma Financial Corp. v. American Intern. Specialty Lines Ins. Co., 200 F. Supp. 2d 710, 715 (E.D. Mich. 2002). A 'palpable defect' is a defect which is considered "obvious, clear, unmistakable, manifest, or plain." Id. As a general rule, a court will not grant a motion for rehearing or reconsideration that merely presents the same issues ruled upon by the court, either expressly or by reasonable implication. Id.
Because this Court previously denied petitioner a certificate of appealability when it denied the petition for writ of habeas corpus, the Court will construe petitioner's motion for a certificate of appealability as a motion for reconsideration of the Court's prior order to deny a certificate of appealability. See e.g. Jackson v. Crosby, 437 F.3d 1290, 1294, n. 5 (11th Cir. 2006). Likewise, because this Court previously denied petitioner leave to appeal in forma pauperis when it denied the petition for writ of habeas corpus, the Court will construe petitioner's motion for leave to appeal in forma pauperis as a motion for reconsideration of the Court's prior order to deny him leave to appeal in forma pauperis in this case. See Pettigrew v. Rapelje, No. 08-CV-12530-BC; 2008 WL 4186271, p. 1 (E.D. Mich. September 10, 2008).
Petitioner's motion for reconsideration will be denied, because petitioner is merely presenting issues which were already ruled upon by this Court, either expressly or by reasonable implication, when the Court denied petitioner's habeas application and declined to issue a certificate of appealability or leave to appeal in forma pauperis. See Hence v. Smith, 49 F. Supp. 2d 547, 553 (E.D. Mich. 1999).
This Court notes that the proper procedure when a district court denies a certificate of appealability is for the petitioner to file a motion for a certificate of appealability before the appellate court in the appeal from the judgment denying the petition for writ of habeas corpus or the motion to vacate sentence. See Sims v. U.S., 244 F.3d 509 (6th Cir. 2001)(citing Fed. R.App. P. 22(b)(1)). In light of the fact that this Court has already denied petitioner a certificate of appealability, petitioner should direct his request for a certificate of appealability to the Sixth Circuit. The Court, in the interests of justice, will order that petitioner's motion for a certificate of appealability to be transferred to the United States Court of Appeals for the Sixth Circuit.
The Court will also order the Clerk of the Court to transfer petitioner's motion to proceed in forma pauperis on appeal to the Sixth Circuit. It is well settled that the filing of a notice of appeal transfers jurisdiction over the merits of the appeal to the appellate court. Workman v. Tate, 958 F.2d 164, 167 (6thCir. 1992). Petitioner's notice of appeal divests this Court of jurisdiction to consider his motion that he be permitted to proceed in forma pauperis in the Sixth Circuit Court of Appeals. See Glick v. U.S. Civil Service Com'n, 567 F. Supp. 1483, 1490 (N.D. 111. 1983); Brinton v. Gaffney, 560 F. Supp. 28, 29-30 (E.D. Pa. 1983). Because jurisdiction of this action was transferred from the district court to the Sixth Circuit Court of Appeals upon the filing of the notice of appeal, petitioner's motion to proceed in forma pauperis on appeal would be more appropriately addressed to the Sixth Circuit.
IT IS HEREBY ORDERED that petitioner's motion for a reconsideration is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court transfer petitioner's "Motion for Certificate of Appealability" [Dkt. # 23] and the "Application to Proceed In Forma Pauperis on Appeal [Dkt. # 24] to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.
SO ORDERED
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HON. PAUL D. BORMAN
UNITED STATES DISTRICT COURT