Zimmer v. Rapelje

Filing 13

OPINION and ORDER Denying Petitioner's 10 MOTION for Reconsideration and Denying 11 Motion to Proceed In Forma Pauperis on Appeal. Signed by District Judge Gerald E. Rosen. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DARYL ZIMMER,
Case Number: 13-12560
HONORABLE GERALD E. ROSEN

Petitioner,
v.
LLOYD RAPELJE,
Respondent.
/

OPINION AND ORDER DENYING PETITIONER’S
MOTION FOR RECONSIDERATION AND DENYING
MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL
On January 26, 2015, the Court denied Petitioner’s habeas petition filed pursuant
to 28 U.S.C. § 2254, declined to issue a certificate of appealability, and denied leave to
appeal in forma pauperis. The petition challenged Petitioner’s 2011 plea-based
convictions for first-degree criminal sexual conduct, second-degree criminal sexual
conduct, ten counts of third-degree criminal sexual conduct, child sexually abusive
activity, two counts of accosting a minor for immoral purposes, distributing sexually
explicit matter to minors, fourth-degree criminal sexual conduct, and furnishing alcohol to
minors. Now before the Court are Petitioner’s Motion for Reconsideration and Motion to
Proceed In Forma Pauperis on Appeal.
Motions for reconsideration may be granted when the moving party shows (1) a
“palpable defect,” (2) by which the court and the parties were 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 arguments for reconsideration amount to a disagreement
with the Court’s decision. A motion predicated upon such argument fails to allege
sufficient grounds upon which to grant reconsideration. L.R. 7.1(h)(3); see also Meekison
v. Ohio Dept. of Rehabilitation and Correction, 181 F.R.D. 571, 572 (S.D. Ohio 1998).
Petitioner fails to demonstrate that the Court’s decision denying a COA was 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 request to proceed in forma pauperis on
appeal. Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a districtcourt action who desires to appeal in forma pauperis must file a 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). The Supreme Court has interpreted “good

faith” as stated in § 1915 as “not frivolous”. Coppedge v. United States, 369 U.S. 438,
445-446 (1962). The Supreme Court has further defined a “frivolous” action as one that
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“lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 109
S.Ct. 1827, 1831 (1989).
For the reasons stated in this Court’s Opinion and Order of January 26, 2015,
Petitioner’s claims are factually and/or legally deficient. The Court, therefore, makes the
finding that Petitioner’s claims are frivolous because they lack an arguable basis in law or
fact. Accordingly, this Court determines that any appeal from the Court’s decision would
be frivolous and, therefore, hereby certifies that an appeal would not taken in good faith.
Therefore, pursuant to 28 U.S.C. § 1915(a)(3), the Court determines that Plaintiff’s
appeal may not be taken in forma pauperis.
Accordingly, the Court DENIES Petitioner’s “Motion for Reconsideration” (Doc.
#10) and DENIES Petitioner’s “Motion to Proceed In Forma Pauperis On Appeal” (Doc.
#11).
SO ORDERED.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: June 1, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on June 1, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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