Aussicker v. Curtin

Filing 33

ORDER granting 29 Motion to Proceed Informa Pauperis on Appeal; denying 31 Motion for Certificate of Appealability. Signed by District Judge Robert H Cleland. (LWag)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JAMES WILLIAM AUSSICKER, Petitioner, v. CINDI CURTIN, Respondent. ________________________________/ ORDER DENYING PETITIONER JAMES WILLIAM AUSSICKER'S MOTION FOR A CERTIFICATE OF APPEALABILITY AND GRANTING HIS MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL This matter is before the court on Petitioner's motion for a certificate of appealability and motion for leave to proceed in forma pauperis on appeal concerning the denial of his petition for a writ of habeas corpus. The court declined to issue a certificate of appealability in its opinion and order denying the petition. 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 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 Local Rule 7.1(h)(3). Accordingly, the court will deny his motion for a certificate of appealability. Case No. 2:08-CV-12280

Petitioner also seeks leave to proceed in forma pauperis on appeal. See Fed. R. App. P. 24(a)(1). An appeal may not be taken in forma pauperis if the court determines that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). Although the court has declined to issue a certificate of appealability in this case, the court cannot certify that the appeal is not taken in good faith. The court will therefore allow Petitioner to proceed in forma pauperis on appeal. Accordingly, IT IS ORDERED that Petitioner's motion for a certificate of appealability [Dkt. #31] is DENIED, and his motion to proceed in forma pauperis on appeal [Dkt. # 29] is GRANTED.

S/Robert H. Cleland ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE Dated: April 9, 2010 I hereby certify that a copy of the foregoing document was mailed to counsel of record on this date, April 9, 2010, by electronic and/or ordinary mail. S/Lisa Wagner Case Manager and Deputy Clerk [phone]
S:\Cleland\JUDGE'S DESK\C3 ORDERS\08-12280.AUSSICKER.coaifp.ctb.wpd

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