Copeland v. Palmer

Filing 19

ORDER transferring 17 Application to proceed in forma pauperis to the USCA for the Sixth Circuit. Signed by District Judge Denise Page Hood. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CURTIS DIONTE COPELAND, # 600227,
Petitioner,
CASE NO. 2:14-CV-14363
HONORABLE DENISE PAGE HOOD
UNITED STATES DISTRICT JUDGE

v.
SHAWN BREWER,

Respondent.
____________________________________/

ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER THE
MOTION TO PROCEED IN FORMA PAUPERIS ON APPEAL [Dkt. # 17] TO
THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

On April 15, 2015, this Court granted petitioner an unconditional writ of
habeas corpus, finding that there had been insufficient evidence presented at trial
to prove beyond a reasonable doubt that petitioner had committed the crime of
receiving and concealing a stolen motor vehicle and being an habitual offender.
On April 17, 2015, respondent filed a notice of appeal. Respondent also
paid the appellate filing fee.
Petitioner has filed an application to proceed without prepayment of fees or
costs on appeal. For the reasons stated below, the Court orders that the motion
for leave to appeal in forma pauperis to be transferred to the United States Court
of Appeals for the Sixth Circuit.
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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. 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 ));. Workman v. Tate, 958 F. 2d 164, 167 (6th Cir. 1992).
Respondent’s notice of appeal divests this Court of jurisdiction to consider
petitioner’s motion that he be permitted to proceed in forma pauperis in the Sixth
Circuit Court of Appeals. See e.g. Johnson v. Woods, No. 5:12–11632; 2013 WL
557271, * 2 (E.D. Mich. February 13, 2013); Glick v. U.S. Civil Service Com’n,
567 F. Supp. 1483, 1490 (N.D. Ill. 1983); Brinton v. Gaffney, 560 F. Supp. 28, 2930 (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 motion to proceed in forma pauperis on appeal would be
more appropriately addressed to the Sixth Circuit. In the interests of justice, this
Court can order that petitioner’s application to proceed in forma pauperis be
transferred to the Sixth Circuit for that court’s consideration. See Baker v. Perry,
No. 2:12–10424; 2012 WL 6097323, * 2 (E.D. Mich. December 6, 2012). 1
IT IS HEREBY ORDERED that the Clerk of the Court transfer Petitioner’s
“Application to proceed without prepaying fees or costs on appeal” [Dkt. # 17] to
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It is not even clear whether petitioner would be required to obtain permission to proceed in
forma pauperis on appeal, as he is the appellee in this case. Fed. R. App. P. 3(e) states: “Upon filing a
notice of appeal, the appellant must pay the district clerk all required fees.” (Emphasis added).

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the United States Court of Appeals for the Sixth Circuit pursuant to 28 U.S.C. §
1631.

S/Denise Page Hood
Denise Page Hood
United States District Judge
Dated: May 28, 2015
I hereby certify that a copy of the foregoing document was served upon counsel
of record on May 28, 2015, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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