Niemiec v. Burt

Filing 53

OPINION AND ORDER construing 52 Motion for Certificate of Appealability as a Motion for Reconsideration, Denying Reconsideration, and granting 50 Motion for pauper status. Signed by District Judge George Caram Steeh (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN NIEMIEC,
Petitioner,

Case Number: 2:13-CV-10180
HON. GEORGE CARAM STEEH

v.
SHERRY BURT,
Respondent.
/
OPINION AND ORDER CONSTRUING MOTION FOR
CERTIFICATE OF APPEALABILITY AS MOTION FOR
RECONSIDERATION, DENYING RECONSIDERATION,
AND GRANTING MOTION FOR PAUPER STATUS
This matter is before the Court on John Niemiec’s Motion for
Certificate of Appealability and Motion to Proceed In Forma Pauperis on
Appeal. On February 11, 2016, the Court denied Niemiec’s petition for a
writ of habeas corpus and denied a certificate of appealability. Because
the Court has already issued a ruling on the certificate of appealability, the
Court construes the Motion for Certificate of Appealability as a motion for
reconsideration.
Motions for reconsideration may be granted when the moving party
shows (1) a “palpable defect,” (2) by which the court and the parties were
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misled, and (3) the correction of which will result in a different disposition of
the case. E.D. Mich. L.R. 7.1(h)(3). A “palpable defect” is a “defect which
is obvious, clear, unmistakable, manifest or plain.” Olson v. The Home
Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich. 2004).
The Court denied a certificate of appealability (COA) because
reasonable jurists could not “debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner” or that the
issues presented were “adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
Petitioner’s motion simply reasserts arguments advanced in his petition
and, therefore, fails to allege sufficient grounds upon which to grant
reconsideration. L.R. 7.1(h)(3) (“[T]he Court will not grant motions for
rehearing or reconsideration that merely present the same issues relied
upon by the Court, either expressly or by reasonable implication.”). The
Court’s decision denying a COA was not based upon a palpable defect by
which the Court was misled and the Court will deny the motion.
Also before the Court is Petitioner’s Motion for Pauper Status.
Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a
district-court action who desires to appeal in forma pauperis must file a

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motion in the district court. 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). “[T]o determine that an appeal is in good faith, a court need
only find that a reasonable person could suppose that the appeal has some
merit.” Walker v. O’Brien, 216 F.3d 626, 631 (7th Cir. 2000). While the
Court held that jurists of reason would not find the Court’s decision that the
petition was meritless to be debatable or wrong, the Court finds that an
appeal may be taken in good faith.
Accordingly, the Court DENIES Petitioner’s “Motion for Certificate of
Appealability” (ECF No. 52), which the Court has construed as a “Motion
for Reconsideration.” The Court GRANTS Petitioner’s Motion to Proceed
In Forma Pauperis on Appeal (ECF No. 50).
SO ORDERED.
Dated: June 7, 2017
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
June 7, 2017, by electronic and/or ordinary mail and also on
John Niemiec, 32038 Williamsburg Dr.,
St. Clair Shores, MI 48082.
s/Barbara Radke
Deputy Clerk

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