Cowan v. Stovall

Filing 92

OPINION AND ORDER DENYING 90 MOTION for Certificate of Appealability and GRANTING 89 Application to Proceed Without Prepaying Fees or Costs filed by Tracey Lynn Cowan Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
______________________________________________________________________
TRACY LYNN COWAN,
Petitioner,

v.

CLARICE STOVALL,

Case No. 06-13846

Respondent.
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OPINION AND ORDER DENYING A CERTIFICATE OF APPEALABILITY AND
GRANTING APPLICATION TO APPEAL IN FORMA PAUPERIS
On July 15, 2021, the court issued an opinion and order denying Petitioner’s
application for habeas relief brought pursuant to 28 U.S.C. § 2254 and also declined to
issue a certificate of appealability. (ECF No. 86.) Petitioner has now filed a motion for
certificate of appealability (ECF No. 90), which the court will construe as a motion for
reconsideration of its prior opinion and order. Petitioner has also filed an application to
appeal in forma pauperis. (ECF No. 89.) For the reasons stated below, the motion for a
certificate of appealability will be denied, but Petitioner will be granted leave to appeal in
forma pauperis.
Petitioner initially requests a certificate of appealability. Because the court
already rejected this request when it denied her petition for writ of habeas corpus (ECF
No. 86, PageID.2971), the court construes Petitioner’s motion before the court as a
motion for reconsideration of the court’s previous order. See, e.g., Jackson v. Crosby,
437 F.3d 1290, 1294, n. 5 (11th Cir. 2006); Mell v. Skipper, No. 2:18-CV-11971, 2019
WL 2635968, at *1 (E.D. Mich. June 27, 2019) (Borman, J.).

To prevail on a motion for reconsideration, a party “must not only demonstrate a
palpable defect by which the Court and the parties and other persons entitled to be
heard on the motion have been misled but also show that correcting the defect will
result in a different disposition of the case.” See E.D. Mich. LR 7.1(h)(3); see also Indah
v. U.S. Sec. & Exch. Comm’n, 661 F.3d 914, 924 (6th Cir. 2011). “A ‘palpable defect’ is
a defect which is obvious, clear, unmistakable, manifest, or plain.” Hawkins v. Genesys
Health Sys., 704 F. Supp. 2d 688, 709 (E.D. Mich. 2010) (Borman, J.). “[T]he Court will
not grant motions for rehearing or reconsideration that merely present the same issues
ruled upon by the Court, either expressly or by reasonable implication.” See E.D. Mich.
L.R. 7.1(h)(3); see also Bowens v. Terris, No. 2:15-CV-10203, 2015 WL 3441531, at *1
(E.D. Mich. May 28, 2015) (Steeh, J.).
Other than conclusory or unsupported allegations, Petitioner has failed to
advance any arguments in her motion which show that this court erred in denying the
petition for writ of habeas corpus and in declining to issue a certificate 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 her a certificate of appealability. See Hence v. Smith, 49 F.
Supp. 2d 547, 553 (E.D. Mich. 1999).
Petitioner has also filed an application to appeal in forma pauperis. (ECF No. 89.)
The standard for granting an application for leave to proceed in forma pauperis is less
stringent. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002) (citing
United States v. Youngblood, 116 F. 3d 1113, 1115 (5th Cir. 1997)). Whereas a

certificate of appealability may be granted only if a petitioner makes a substantial
showing of the denial of a constitutional right, a court may grant in forma pauperis status
if it finds that an appeal is being taken in good faith. Id. at 764-65; 28 U.S.C. §
1915(a)(3); Fed. R. App. 24(a). “Good faith” requires a showing that the issues raised
are not frivolous; it does not require a showing of probable success on the merits.
Foster, 208 F. Supp. 2d at 765. Although jurists of reason would not debate the court’s
resolution of the habeas petition, the issues are not frivolous; therefore, an appeal could
be taken in good faith and petitioner may proceed in forma pauperis on appeal. Id.
Accordingly,
IT IS ORDERED that Petitioner’s Motion for Certificate of Appealability (ECF
No. 90) is DENIED.
IT IS FURTHER ORDERED that the application to proceed in forma pauperis on
appeal (ECF No. 89) is GRANTED.

Dated: October 27, 2021

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, October 27, 2021, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\Cleland\JUDGE'S DESK\C2 ORDERS\06-13846.COWAN.GrantingIFPApplication.MAZ.docx

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