Opinion
CASE NO. 2:12-CV-12415
01-10-2018
RALPH STEGALL, Petitioner, v. SHANE JACKSON, Respondent.
OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY (Doc. 28) TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT AND DENYING AS MOOT THE APPLICATION TO PROCEED WITHOUT PREPAYMENT OF COSTS AND FEES ON APPEAL (Doc. 26)
On November 30, 2017, this Court summarily denied petitioner's application for a writ of habeas corpus and further denied him a certificate of appealability. The Court granted petitioner leave to appeal in forma pauperis.
Petitioner has filed a notice of appeal with the United States Court of Appeals for the Sixth Circuit. Petitioner has also filed a motion for a certificate of appealability and a request for continued in forma pauperis status on appeal.
For the reasons that follow, the Court orders that petitioner's motion for a certificate of appealability be transferred to the United States Court of Appeals for the Sixth Circuit. Petitioner's request for continued in forma pauperis status is denied as moot.
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)). Petitioner has apparently done so in this case, although he has filed his motion with the district court, rather than the Sixth Circuit. The Court, in the interests of justice, will order that petitioner's motion for a certificate of appealability be transferred to the United States Court of Appeals for the Sixth Circuit.
This Court has already granted petitioner leave to appeal in forma pauperis. It is unnecessary for petitioner to again obtain permission to proceed in forma pauperis on appeal. Petitioner's current motion to proceed in forma pauperis on appeal will therefore be denied as moot. See McMillan v. McKune, 16 F. App'x. 896, 897 (10th Cir. 2001).
IT IS ORDERED That:
(1) The Clerk of the Court transfer the motion for a certificate of appealability (Doc. # 28) to the United States Court of Appeals for the Sixth Circuit.
(2) . The application to proceed without prepaying costs and fees on appeal (Doc. # 26) is DENIED AS MOOT.
s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT DATED: January 10, 2018