United States District Court, E.D. Michigan, Southern Division
JOVON C. DAVIS, Petitioner,
WILLIS CHAPMAN, Respondent.
ORDER DENYING MOTION FOR RECONSIDERATION
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
Court denied petitioner's application for a writ of
habeas corpus and further denied him a certificate of
appealability or leave to appeal in forma pauperis.
Davis v. Chapman, No. 18-10391, 2019 WL 1923184, at
*1 (E.D. Mich. Apr. 30, 2019).
has now filed a motion for a certificate of appealability,
ECF No. 15, and an application to proceed without prepaying
fees and costs on appeal, ECF No. 14. Because the Court
previously denied Petitioner a certificate of appealability
and leave to appeal in forma pauperis, the Court
will treat the pending motions as a motion for
reconsideration. Petitioner has also filed a Notice of
Appeal. ECF No. 12.
reasons that follow, the Court denies petitioner's motion
for reconsideration. The Court orders that petitioner's
motion for a certificate of appealability and the application
to proceed without prepaying fees and costs on appeal to be
transferred to the United States Court of Appeals for the
Rule 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. Id. The movant need not only demonstrate a
palpable defect by which the court and the parties have been
misled but also show that a different disposition of the case
must result from a correction thereof. L.R. 7.1(h)(3).
“A ‘palpable defect' is a defect that is
obvious, clear, unmistakable, manifest, or plain.”
See Scozzari v. City of Clare, 723 F.Supp.2d 974,
981 (E.D. Mich. 2010).
Court previously denied petitioner a certificate of
appealability when it denied the petition for a writ of
habeas corpus. The Court thus construes the 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). Likewise, because this
Court previously denied petitioner leave to appeal in
forma pauperis, the Court construes petitioner's
application to proceed without prepaying fees and costs on
appeal as a motion for reconsideration of the Court's
prior order to deny him leave to appeal in forma
pauperis in this case. See Pettigrew v.
Rapelje, No. 2008 WL 4186271, *1 (E.D. Mich. Sept. 10,
motion for reconsideration presents issues that the Court
already ruled upon when the Court denied the petition for a
writ of habeas corpus 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).
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)). Petitioner should direct his request
for a certificate of appealability to the Sixth Circuit. The
Court, in the interests of justice, will order that the
motion for a certificate of appealability to be transferred
to the United States Court of Appeals for the Sixth Circuit.
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 his
request that he be permitted to proceed in forma
pauperis in the Sixth Circuit Court of Appeals. See
Glick v. U.S. Civil Service Com'n, 567 F.Supp. 1483,
1490 (N.D. Ill. 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, the
application would be more appropriately addressed to the
foregoing reasons, the motion for reconsideration is
DENIED. The Clerk of the Court is
ORDERED to transfer the Motion for a
Certificate of Appealability (ECF No. 15) and the Application
to Proceed Without Prepaying Fees and Costs on Appeal (ECF
No. 14) to the United States Court of Appeals for the Sixth
Circuit pursuant to 28 U.S.C. § 1631.