Towle v. Warren

Filing 14

ORDER denying 12 Motion for Certificate of Appealability (construed as Motion for Reconsideration) but directing the Clerk of the Court to Transfer the Motion to the United States Court of Appeals for the Sixth Circuit. Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LORI TOWLE,
Petitioner,

Civil No. 2:12-11120
HONORABLE PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE

v.
MILLICENT WARREN,
Respondent.
___________________________________/

OPINION AND ORDER DENYING THE MOTION FOR RECONSIDERATION AND
DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION FOR A
CERTIFICATE OF APPEALABILITY AND MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
On June 24, 2014, this Court denied the petition for writ of habeas corpus that had been
filed pursuant to 28 U.S.C. § 2254. The Court also denied petitioner a certificate of appealability
and leave to appeal in forma pauperis. Towle v. Warren, No. 2:12-CV-11120, 2014 WL 2879752
(E.D. Mich. June 24, 2014).
On July 16, 2014, petitioner filed a notice of appeal with the United States Court of
Appeals for the Sixth Circuit. Petitioner has also filed a motion for a certificate of appealability
and a motion to proceed in forma pauperis on appeal, which this Court will treat in part as a
motion for reconsideration of the Court’s previous decision to deny petitioner a certificate of
appealability or leave to appeal in forma pauperis. For the reasons that follow, the Court will
deny petitioner’s motion for reconsideration. The Court will further order that petitioner’s
motion for a certificate of appealability and the motion to proceed in forma pauperis on appeal to
be transferred to the United States Court of Appeals for the Sixth Circuit.
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U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for reconsideration.
In order for a court to grant a motion for reconsideration, the movant must show (1) a palpable
defect; (2) that misled the court and the parties; and (3) that correcting the defect will result in a
different disposition of the case. Sigma Financial Corp. v. American Intern. Specialty Lines Ins.
Co., 200 F. Supp. 2d 710, 715 (E.D. Mich. 2002). A ‘palpable defect’ is a defect which is
considered “obvious, clear, unmistakable, manifest, or plain.” Id. As a general rule, a court will
not grant a motion for rehearing or reconsideration that merely presents the same issues ruled
upon by the court, either expressly or by reasonable implication. Id.
Because this Court previously denied petitioner a certificate of appealability when it
denied the petition for writ of habeas corpus, the Court will construe petitioner’s 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 when it denied the petition for writ of habeas corpus, the Court will construe
petitioner’s motion for leave to appeal in forma pauperis 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. 08-12530-BC, 2008 WL 4186271, p. 1 (E.D. Mich. September 10, 2008).
Petitioner’s motion for reconsideration will 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 habeas application 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).

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This Court notes that the 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 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)). In light of the fact that this Court has already denied petitioner a certificate of
appealability, petitioner should direct her request for a certificate of appealability to the Sixth
Circuit. The Court, in the interests of justice, will order that petitioner’s motion for a certificate
of appealability to be transferred 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)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982)( per curiam ));. Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992). Petitioner’s notice of
appeal divests this Court of jurisdiction to consider her request that she be permitted to proceed
in forma pauperis in the Sixth Circuit Court of Appeals. See Johnson v. Woods, No. 5:12–11632,
2013 WL 557271, p. 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 the notice of appeal, petitioner’s request to proceed in
forma pauperis on appeal would be more appropriately addressed to the Sixth Circuit. In the
interests of justice, this Court can order that petitioner’s application to proceed in forma pauperis

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be transferred to the Sixth Circuit for that court’s consideration. See Baker v. Perry, No.
2:12–10424, 2012 WL 6097323, p. 2 (E.D. Mich. December 6, 2012).
IT IS HEREBY ORDERED that the Clerk of the Court transfer Petitioner’s
“Application to Proceed In Forma Pauperis [Dkt. # 11] and the Motion for Certificate of
Appealability [Dkt. # 12] to the United States Court of Appeals for the Sixth Circuit pursuant to
28 U.S.C. § 1631.
SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: July 24, 2014
CERTIFICATE 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 July 24, 2014.

s/Deborah Tofil
Case Manager

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