Opinion
CASE NO. 2:13-CV-12531
04-16-2014
LATOYA SIMMONS, Petitioner, v. MILLICENT WARREN, Respondent.
HONORABLE GEORGE CARAM STEEH
OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION
AND DIRECTING THE CLERK OF THE COURT TO TRANSFER THE
MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Latoya Simmons, ("petitioner"), filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which she challenged her conviction for armed robbery, M.C.L.A. 750.529; and possession of a firearm in the commission of a felony [felony-firearm], M.C.L.A. 750.227b. On March 7, 2014, this Court denied petitioner's application for a writ of habeas corpus and also declined to issue a certificate of appealability or to grant leave to appeal in forma pauperis. See Simmons v. Warren, 2014 WL 902848 (E.D. Mich. March 7, 2014). Petitioner has now filed a notice of appeal along with an application to proceed with an appeal without prepayment of fees and costs, which this Court will treat in part as a motion for reconsideration of the Court's previous decision to deny petitioner 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 to proceed in forma pauperis on appeal to be transferred to the United States Court of Appeals for the Sixth Circuit.
The Court will deny plaintiff's motion for reconsideration. U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for reconsideration. However, a motion for reconsideration which presents the same issues already ruled upon by the court, either expressly or by reasonable implication, will not be granted. Ford Motor Co. v. Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). A motion for reconsideration should be granted if the movant demonstrates a palpable defect by which the court and the parties have been misled and show that correcting the defect will lead to a different disposition of the case. See DirecTV, Inc. v. Karpinsky, 274 F. Supp. 2d 918, 921 (E.D. Mich. 2003).
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 her leave to appeal in forma pauperis in this case. See Pettigrew v. Rapelje, No. 2008 WL 4186271, * 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).
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 (6th Cir. 1992). Petitioner's notice of appeal divests this Court of jurisdiction to consider her motion that she be permitted to proceed in forma pauperis in the Sixth Circuit Court of Appeals. See Johnson v. Woods, 2013 WL 557271, * 2 (E.D. Mich. February 13, 2013); Glick v. U.S. Civil Service Com'n, 567 F. Supp. 1483, 1490 (N.D. Ill. 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. See Baker v. Perry, 2012 WL 6097323, * 2 (E.D. Mich. December 6, 2012).
IT IS HEREBY ORDERED that petitioner's motion for a reconsideration is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court transfer the "Application to Proceed Without Prepaying Fees or Costs on Appeal" [Dkt. # 15] to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.
__________
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
April 16, 2014, by electronic and/or ordinary mail and also on
Latoya Simmons #786947, Huron Valley Complex - Womens,
3201 Bemis Road, Ypsilanti, MI 48197.