Jones v. Howes

Filing 38

OPINION AND ORDER re 32 Notice of Appeal filed by Charles Jones, 35 DENYING MOTION for Certificate of Appealability filed by Charles Jones, and GRANTING 34 Application to Proceed In Forma Pauperis filed by Charles Jones., Signed by District Judge Robert H Cleland. (LWag)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CHARLIE JONES, Petitioner, v. CAROL HOWES, Respondent. / OPINION AND ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY AND GRANTING PETITIONER'S APPLICATION TO PROCEED WITHOUT PAYMENT OF FEES ON APPEAL On January 28, 2010, pursuant to the court's order adopting the magistrate judge's report and recommendation and denying the petition for writ of habeas corpus, the court issued a final judgment in favor of Respondent Carol Howes. On February 19, 2010, Petitioner Charlie Jones filed a notice of appeal, an application to proceed in forma pauperis, and a motion for a certificate of appealability. For the reasons below, the court will deny a certificate of appealability and grant the application to proceed in forma pauperis on appeal. The court declined to issue a certificate of appealability in its opinion and order adopting the magistrate judge's report and recommendation. The court finds no reason to reconsider that decision. A motion for reconsideration which presents issues already ruled upon by the court, either expressly or by reasonable implication, will not be granted. See Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich. 1999); Czajkowski v. Tindall & Assoc., P.C., 967 F. Supp. 951, 952 (E.D. Mich. 1997). Petitioner has not Case No. 07-12958

met his burden of showing a palpable defect by which the court has been misled or his burden of showing that a different disposition must result from a correction thereof, as required by Eastern District of Michigan Local Rule 7.1(g)(3). Accordingly, the court will deny Petitioner's motion for a certificate of appealability. The standard for granting an application for leave to proceed in forma pauperis is a lower standard than the standard for certificates of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D. Mich. 2002). Whereas a certificate of appealability may only be granted if petitioner makes a substantial showing of the denial of a constitutional right, a court may grant leave to proceed in forma pauperis if it finds that an appeal is being taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a); Foster, 208 F. Supp. 2d at 764-65. "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 the court declined to issue a certificate of appealability, the court finds that Petitioner's claims are not frivolous. The court will therefore grant Petitioner's application to proceed on appeal in forma pauperis. Accordingly, For the reasons stated above, IT IS ORDERED that Petitioner's "Motion for a Certificate of Appealability" [Dkt. # 35] is DENIED. IT IS FURTHER ORDERED that Petitioner's "Application to Proceed In Forma Pauperis on Appeal" [Dkt. # 34] is GRANTED. S/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

2

Dated: April 6, 2010 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, April 6, 2010, by electronic and/or ordinary mail. S/Lisa Wagner Case Manager and Deputy Clerk [phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\07-12958.JONES.COA.IFP.bsc.wpd

3