Rice v. Berghuis

Filing 35

OPINION AND ORDER denying 32 Motion for Reconsideration, and denying a Certificate of Appealability and leave to appeal In Forma Pauperis. Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
TOMMIE RICE,
Petitioner,

Case No. 2:13-CV-10060
HONORABLE GEORGE CARAM STEEH

v.
KATHLEEN OLSON,
Respondent.
___________________________/

OPINION AND ORDER DENYING THE MOTION FOR
RECONSIDERATION [DKT. # 32], AND DENYING A
CERTIFICATE OF APPEALABILITY ON THE MOTION FOR
RECONSIDERATION AND LEAVE TO APPEAL IN FORMA PAUPERIS
On January 7, 2016, the Court denied the petition for writ of habeas corpus
that had been filed by petitioner pursuant to 28 U.S.C. § 2254, declined to issue a
certificate of appealability, and denied petitioner leave to appeal in forma
pauperis. Rice v. Olson, No. 2:13-CV-10060, 2016 WL 74856 (E.D. Mich. Jan. 7,
2016).
Petitioner has filed a notice of appeal with the United States Court of
Appeals for the Sixth Circuit. [Dkt. ## 33, 34]. Petitioner has also filed a motion
for reconsideration. For the reasons that follow, the motion for reconsideration is
DENIED.
This Court lacks jurisdiction to consider petitioner’s motion for
reconsideration because petitioner has filed a notice of appeal in this case. A

-1-

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 )); see also Workman v. Tate, 958 F. 2d 164, 167 (6th Cir.
1992). Because petitioner has filed a notice of appeal, this Court lacks
jurisdiction to amend its original opinion and order to consider the merits of
petitioner’s case. Workman, 958 F. 2d at 167-68; see also Raum v. Norwood, 93
Fed. Appx. 693, 695 (6th Cir. 2004)(Plaintiffs deprived district court of jurisdiction
over their motion for reconsideration by filing notice of appeal before district court
had chance to make decision on motion to reconsider).
Moreover, even if this Court had jurisdiction over petitioner’s motion for
reconsideration, it would still deny the motion. E.D. Mich. LR 7.1(h) governs
motions for reconsideration. However, a motion for reconsideration which
presents the same issues already ruled upon by the court, either expressly or by
reasonable implication, will not be granted. Ford Motor Co. v. Greatdomains.com,
Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). A motion for reconsideration
should be granted if the movant demonstrates a palpable defect by which the
court and the parties have been misled and show that correcting the defect will
lead to a different disposition of the case. See DirecTV, Inc. v. Karpinsky, 274 F.
Supp. 2d 918, 921 (E.D. Mich. 2003).
-2-

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).
A certificate of appealability is required to appeal the denial of a motion for
reconsideration in a habeas case. See e.g. Amr v. U.S., 280 Fed. Appx. 480, 486
(6th Cir. 2008). This Court will deny petitioner a certificate of appealability,
because jurists of reason would not find this Court’s resolution of petitioner’s
motion for reconsideration to be debatable. The Court will deny petitioner leave
to appeal in forma pauperis because any appeal would be frivolous. Hence, 49 F.
Supp. 2d at 549.
IT IS HEREBY ORDERED that the motion for reconsideration [Dkt. # 32] is
DENIED.
IT IS FURTHER ORDERED that a certificate of appealability regarding the
motion for reconsideration and leave to appeal in forma pauperis are DENIED.
So Ordered.
Dated: February 11, 2016
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

-3-

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
February 11, 2016, by electronic and/or ordinary mail and also
on Tommie Rice #415366, Ojibway Correctional Facility,
N5705 Ojibway Road, Marenisco, MI 49947.
s/Barbara Radke
Deputy Clerk

-4-