O'Bryan v. Palmer

Filing 23

ORDER transferring 19 Motion for certificate of appealability, 20 Application to proceed without prepaying fees and costs on appeal, and 21 Motion to appoint counsel to USCA for the Sixth Circuit. Signed by District Judge Robert H. Cleland. (DPer)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES O’BRYAN,
Petitioner,
v.

Case No. 14-11793

CARMEN PALMER
Respondent.
/
ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE MOTION
FOR A CERTIFICATE OF APPEALABILITY, THE MOTION TO PROCEED WITHOUT
PREPAYING FEES AND COSTS ON APPEAL, AND THE MOTION TO APPOINT
COUNSEL TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
On February 10, 2016, the court denied Petitioner’s application for a writ of
habeas corpus brought pursuant to 28 U.S.C. § 2254 and declined to issue a certificate
of appealability or leave to appeal in forma pauperis on appeal. O'Bryan v. Palmer, No.
2:14-CV-11793, 2016 WL 520943 (E.D. Mich. Feb. 10, 2016).
On March 7, 2016, Petitioner signed and dated a Notice of Appeal, which has
been docketed twice with the court. (See Dkt. ## 14,16.)
Petitioner has now filed a motion for a certificate of appealability, an application
to proceed without prepaying fees and costs on appeal, and a motion for the
appointment of counsel. (Dkt. ## 19, 20, 21.) For the reasons that follow, the court will
order the Clerk of the Court to transfer Petitioner’s motions to the United States Court of
Appeals for the Sixth Circuit.

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The proper procedure when a district court denies a certificate of appealability is
for the habeas 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)). The court has already denied Petitioner a
certificate of appealability. Petitioner should request a certificate of appealability from
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.
The court further orders the Clerk of the Court to transfer Petitioner’s remaining
motions to the Sixth Circuit, in light of the fact that Petitioner has filed a notice of appeal.
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. Am. Acad. 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). Petitioner’s
notice of appeal divests this court of jurisdiction to consider his motions to proceed
without prepayment of fees and costs on appeal and for the appointment of appellate
counsel. See Murray v. Artl, 189 F. App’x 501, 504 (7th Cir.2006); 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 remaining motions would be more appropriately addressed to the
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Sixth Circuit. See Grizzell v. State of Tennessee, 601 F. Supp. 230, 232 (M.D. Tenn.
1984).
In the interests of justice, a district court has the discretion, pursuant to 28 U.S.C.
§ 1631, to transfer a case or pleading that has been improperly filed in that court to the
proper court. See Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003). Accordingly,
IT IS ORDERED that the Clerk of the Court TRANSFER the “Motion for a
Certificate of Appealability” (Dkt. # 19), the “Application to Proceed Without Prepaying
Fees and Costs on Appeal” (Dkt. # 20), and the “Motion To Appoint Counsel” (Dkt.
# 21) to the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. §
1631.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: June 27, 2016
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 27, 2016, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JAH\Habeus\14-11793.O'BRYAN.cert.app.jah.wpd

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