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Walthall v. McKee

United States District Court, Eastern District of Michigan, Southern Division

March 9, 2015

SE’BRYNE O. WALTHALL, Petitioner,
v.
KENNETH MCKEE, Respondent,

ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE PETITION FOR A CERTIFICATE OF PROBABLE CAUSE [Dkt. # 11] TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

HONORABLE MAUREEN O. BATTANI, UNITED STATES DISTRICT COURT

On October 27, 2014, this Court dismissed petitioner’s habeas application for being duplicative to a habeas case pending before Judge Judith E. Levy and denied petitioner a certificate of appealability or leave to appeal in forma pauperis. See Walthall v. McKee, No. 2:14-CV-13510 (E.D. Mich. October 27, 2014). On December 3, 2014, the Court again denied petitioner a certificate of appealability and leave to appeal in forma pauperis.

Petitioner has filed a petition for a certificate of probable cause, which this Court construes as a motion for a certificate of appealability[1] The heading on petitioner’s motion, however, is addressed to the United States Court of Appeals for the Sixth Circuit.

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 will therefore order that the Clerk of the Court to transfer Petitioner’s Petition for a Certificate of Probable Cause [Dkt. # 11] to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.


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