Jones v. Burt

Filing 17

Opinion and ORDER Directing the Clerk of the Court to Transfer the Motion for a Certificate of Appealability and Application to Proceed Without Prepaying Fees and Costs on Appeal to the USCA for the Sixth Circuit. Signed by District Judge Thomas L. Ludington. (SSch)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
CHARLES E. JONES, #226897,
Petitioner,
v

Case No. 14-cv-14624
Honorable Thomas L. Ludington

SHERRY L. BURT,
Respondent.
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OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER
THE MOTION FOR A CERTIFICATE OF APPEALABILITY AND APPLICATION TO
PROCEED WITHOUT PREPAYING FEES AND COSTS ON APPEAL TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
On September 14, 2015, this 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.
Jones v. Burt, No. 14-CV-14624, 2015 WL 5335062 (E.D. Mich. Sept. 14, 2015). On September
22, 2015, Petitioner filed a notice of appeal with the United States Court of Appeals for the Sixth
Circuit. Subsequently, on September 29, 2015, Petitioner filed with this Court a motion for a
certificate of appealability and a request for continued in forma pauperis status on appeal. ECF
Nos. 14, 15. For the reasons that follow, the Court will order that Petitioner’s motion for a
certificate of appealability and the application to proceed without prepaying fees and costs on
appeal be transferred to the United States Court of Appeals for the Sixth Circuit.
The proper procedure when a district court denies a petitioner a certificate of
appealability is for the petitioner to file a motion for a certificate of appealability with the
appellate court. This should be done 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 attempted to follow this
procedure here, but has filed his motion with the district court, rather than the Sixth Circuit. In
the interests of justice, this Court will order the Clerk of Court to transfer Petitioner’s motion for
a certificate of appealability to the United States Court of Appeals for the Sixth Circuit.
The Court will also order the Clerk of the Court to transfer Petitioner’s motion to proceed
in forma pauperis on appeal to the Sixth Circuit.

A notice of appeal generally “confers

jurisdiction on the court of appeals and divests the district court of control over those aspects of
the case involved in the appeal.” Marrese v. American Academy of Orthopaedic Surgeons, 470
U.S. 373, 379 (1985) (internal citations omitted); Workman v. Tate, 958 F. 2d 164, 167 (6th Cir.
1992). A petitioner’s notice of appeal divests the district court of jurisdiction to consider a
motion for permission to proceed in forma pauperis in the Sixth Circuit Court of Appeals. See
Johnson v. Woods, No. 5:12–11632; 2013 WL 557271, * 2 (E.D. Mich. February 13, 2013);
Glick v. U.S. Civil Service Com’n, 567 F. Supp. 1483, 1490 (N.D. Ill. 1983); Brinton v. Gaffney,
560 F. Supp. 28, 29-30 (E.D. Pa. 1983).
Because jurisdiction of this action was transferred from the District Court to the Sixth
Circuit Court of Appeals upon the filing of his notice of appeal, Petitioner’s motion to proceed in
forma pauperis on appeal would be more appropriately addressed to the Sixth Circuit. In the
interests of justice, this Court can transfer Petitioner’s application to proceed in forma pauperis
to the Sixth Circuit for that court’s consideration. See Baker v. Perry, No. 2:12–10424; 2012 WL
6097323, * 2 (E.D. Mich. December 6, 2012).
Accordingly, it is ORDERED that the Clerk of the Court is DIRECTED to transfer
Jones’s Motion For Certificate of Appealability, ECF No. 14, and Application to Proceed

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Without Prepaying Fees or Costs on Appeal, ECF No. 15, to the United States Court of Appeals
for the Sixth Circuit pursuant to 28 U.S.C. § 1631.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: October 9, 2015

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 9, 2015.
s/Suzanne M. Gammon
SUZANNE M. GAMMON
Deputy Clerk

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