United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING THE MOTION FOR
RECONSIDERATION AND DIRECTING THE CLERK OF THE COURT TO
TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
ARTHUR J. TARNOW UNITED STATES DISTRICT JUDGE
19, 2016, this Court issued an opinion and order denying
petitioner's application for writ of habeas corpus
brought pursuant to 28 U.S.C. § 2254. The Court declined
to issue a certificate of appealability but granted
petitioner leave to appeal in forma pauperis.
Wheeldon v. Campbell, No. 2:16-CV-10041, 2016 WL
2910083 (E.D. Mich. May 19, 2016). On June 14, 2016, the
Court granted petitioner an extension of time to file his
reply brief but again denied habeas relief.
has now filed a notice of appeal with the United States Court
of Appeals for the Sixth Circuit. See Dkt. # 14. Petitioner
has also filed a motion for a certificate of appealability,
which this Court will treat in part as a motion for
reconsideration of the Court's prior decision to deny
petitioner a certificate of appealability. 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 be
transferred to the United States Court of Appeals for the
this Court previously denied petitioner a certificate of
appealability when it denied the petition for writ of habeas
corpus, the Court will initially 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 in this case. See e.g.
Jackson v. Crosby, 437 F.3d 1290, 1294, n. 5
(11th Cir. 2006).
Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a
motion for reconsideration. 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 that a different disposition of the case must result from
a correction thereof. Ward v. Wolfenbarger, 340
F.Supp.2d 773, 774 (E.D. Mich. 2004)(citing L.R. 7.1(g)(3)).
A motion for reconsideration which merely presents “the
same issues ruled upon by the Court, either expressly or by
reasonable implication, ” shall be denied. Id.
motion for a certificate of appealability, petitioner
advances the same arguments that he made in his initial
petition for writ of habeas corpus and reply brief and which
were considered and addressed by this Court when the Court
denied petitioner habeas relief and declined to grant him a
certifiacate of appealability. Petitioner's request for
reconsideration will therefore 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 application for writ
of habeas corpus and denied him a certificate of
appealability. See Hence v. Smith, 49 F.Supp.2d 547,
553 (E.D. Mich. 1999).
Court further 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.
HEREBY ORDERED that petitioner's request for
reconsideration of the Court's previous denial of a
certificate of appealability is DENIED.
FURTHER ORDERED that the Clerk of the Court transfer
petitioner's “Motion for A Certificate of
Appealability” [Dkt. # 16] to the United States Court
of Appeals for the Sixth Circuit pursuant to 28 U.S.C. §
after reviewing petitioner's arguments in his reply
brief, this Court will again deny habeas relief for the
reasons stated in the original opinion and order denying
habeas relief. Any error in denying habeas relief without
reviewing petitioner's reply brief has now been rendered
harmless by the Court's curative action in accepting and
reviewing petitioner's belated reply brief. Williams
v. Warrior, 631 F.App'x 587, 591 (10th Cir. 2015).
ORDERED that the motion for an enlargement of time to file a
reply brief (Dkt. # 10) is GRANTED. The Clerk of the Court is
ordered to accept the reply brief (Dkt. # 11) and the
exhibits (Dkt. # 12) for filing.
FURTHER ORDERED that the petition for writ of habeas corpus
is again DENIED WITH PREJUDICE for the reasons stated by the