United States District Court, E.D. Michigan, Southern Division
K. Majzoub United States Magistrate Judge.
OPINION AND ORDER (1) CONSTRUING PETITIONER'S
APPLICATION FOR A CERTIFICATE OF APPEALABILITY AS A TIMELY
FILED NOTICE OF APPEAL, (2) DENYING THE MOTION FOR
RECONSIDERATION, AND (3) DIRECTING THE CLERK OF THE COURT TO
TRANSFER THE PETITION FOR A CERTIFICATE OF APPEALABILITY 
TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT
March 20, 2017, the Court denied Petitioner's application
for a writ of habeas corpus, denied her a certificate of
appealability, and denied her leave to appeal in forma
April 13, 2017, Petitioner signed and dated an
“Application for Certificate of
Appealability.” This Court construes the application as a
timely filed notice of appeal. The Court further treats this
pleading in part as a motion for reconsideration of the
Court's previous decision to deny Petitioner a
certificate of appealability. For the reasons that follow,
the Court denies Petitioner's motion for reconsideration.
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.
in her application for a certificate of appealability
indicates that she has filed a notice of
appeal. This Court has reviewed the docket and
there is no indication of a separate notice of appeal being
Rule of Appellate Procedure 4(a)(1) states that a notice of
appeal must be filed within thirty days of the entry of the
judgment or order from which the appeal is taken. This time
limit is mandatory and jurisdictional. Browder v.
Director, Department of Corrections of Illinois, 434
U.S. 257, 264 (1978). The failure of an appellant to timely
file a notice of appeal deprives an appellate court of
jurisdiction. Rhoden v. Campbell, 153 F.3d 773, 774
(6th Cir. 1998).
United States Supreme Court has held that the requirements of
Federal Rule of Appellate Procedure 3(c), which governs the
contents of a notice of appeal, are to be “liberally
construed.” Smith v. Barry, 502 U.S. 244, 248
(1992). A notice of appeal must “specifically indicate
the litigant's intent to seek appellate review.”
Id. at 248. However, this requirement should not be
used to dismiss an appeal for “informality of form or
title of the notice of appeal.” Id. at 249
(quoting Fed. R. App. P. 3(c)(4)). “Functional rather
than formalistic compliance [with Rule 3(c)] is all that is
required.” Isert v. Ford Motor Co., 461 F.3d
756, 759 (6th Cir. 2006).
Sixth Circuit held that a pro se application for a
certificate of probable cause (the precursor to and
functional equivalent of a motion for a certificate of
appealability) filed within the time limits of Federal Rule
of Appellate Procedure 4(a) can serve as a notice of appeal.
McMillan v. Barksdale, 823 F.2d 981, 982B23 (6th
Cir. 1987). Other cases have held that a motion for a
certificate of appealability can act as the functional
equivalent of a timely filed notice of appeal if it evinces
an intent to appeal the decision denying a habeas petition or
motion to vacate sentence. Lee v. Williamson, 297 F.
App'x 147, 148 n.2 (3rd Cir. 2008); Marmolejo v.
United States, 196 F.3d 377, 378 (2d Cir. 1999);
Carson v. Director of Iowa Dept. of Corrections, 150
F.3d 973, 975 (8th Cir. 1998). Petitioner has evinced an
intent to appeal this Court's decision; this Court
construes the application for a certificate of appealability
as a timely filed notice of appeal.
Rule 7.1(h) allows a party to file a motion for
reconsideration. E.D. Mich. LR 7.1(h). However, a motion for
reconsideration that presents the same issues already ruled
upon by the court, either expressly or by reasonable
implication, will not be granted. Michigan Regional
Council of Carpenters v. Holcroft L.L.C. 195 F.Supp.2d
908, 911 (E.D. Mich. 2002) (citing to E.D. Mich. LR
7.1(g)(3)). 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. Id. A palpable defect is a defect that is
obvious, clear, unmistakable, manifest, or plain. Witzke
v. Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997).
Court denied Petitioner a certificate of appealability when
it denied the petition for a writ of habeas corpus. The Court
construes 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).
motion for reconsideration is denied, because she is merely
presenting issues that 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. See Hence v.
Smith, 49 F.Supp.2d 547, 553 (E.D. Mich. 1999).
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 a 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)). The Court denied Petitioner a
certificate of appealability; therefore, Petitioner should
direct her request for a certificate of appealability to the
Sixth Circuit. The Court, in the interests of justice, orders
that Petitioner's motion for a certificate of
appealability be transferred to the United States Court of
Appeals for the Sixth Circuit.
HEREBY ORDERED THAT:
(1) The Application for a Certificate of Appealability is
construed as a timely ...