Stegall v. Rapelje
OPINION AND ORDER directing the Clerk of the Court to transfer 28 Motion for a certificate of appealability to the USCA for the Sixth Circuit and denying 26 Application to proceed without prepayment of costs and fees on appeal. Signed by District Judge Arthur J. Tarnow. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
CASE NO. 2:12-CV-12415
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO
TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY (Doc.
28) TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT AND DENYING AS MOOT THE APPLICATION TO PROCEED
WITHOUT PREPAYMENT OF COSTS AND FEES ON APPEAL (Doc. 26)
On November 30, 2017, this Court summarily denied petitioner’s
application for a writ of habeas corpus and further denied him a certificate of
appealability. The Court granted petitioner leave to appeal in forma pauperis.
Petitioner has 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 request for continued in forma pauperis status on appeal.
For the reasons that follow, the Court orders that petitioner’s motion for a
certificate of appealability be transferred to the United States Court of Appeals for
the Sixth Circuit. Petitioner's request for continued in forma pauperis status is
denied as moot.
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)). Petitioner
has apparently done so in this case, although he has filed his motion with the
district court, rather than the Sixth Circuit. The Court, in the interests of justice,
will order that petitioner’s motion for a certificate of appealability be transferred to
the United States Court of Appeals for the Sixth Circuit.
This Court has already granted petitioner leave to appeal in forma
pauperis. It is unnecessary for petitioner to again obtain permission to proceed in
forma pauperis on appeal. Petitioner’s current motion to proceed in forma
pauperis on appeal will therefore be denied as moot. See McMillan v. McKune,
16 F. App'x. 896, 897 (10th Cir. 2001).
IT IS ORDERED That:
(1) The Clerk of the Court transfer the motion for a certificate of
appealability (Doc. # 28) to the United States Court of Appeals for the
(2). The application to proceed without prepaying costs and fees on
appeal (Doc. # 26) is DENIED AS MOOT.
s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT
DATED: January 10, 2018
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