Davis v. Trierweiler

Filing 18

ORDER DENYING without prejudice 16 Request for Appointment of Appellate Counsel and GRANTING 17 Request for Extension of time until 7/6/2018 to File an Application to Proceed Informa Pauperis on Appeal filed by Mario Davis. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_____________________________________________________________________
MARIO DAVIS, #231964,
Petitioner,
v.

Case No. 15-14420

TONY TRIERWEILER,
Respondent.
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ORDER GRANTING PETITIONER’S REQUEST FOR AN EXTENSION OF TIME TO
FILE AN APPLICATION TO PROCEED IN FORMA PAUPERIS ON APPEAL AND
DENYING HIS REQUEST FOR THE APPOINTMENT OF APPELLATE COUNSEL
Michigan prisoner Mario Durrel Davis (“Petitioner”) filed a pro se petition for a writ
of habeas corpus challenging his state court convictions under 28 U.S.C. § 2254. The
court denied the petition on March 31, 2018, and Petitioner filed a notice of appeal
dated April 30, 2018. The matter is now before the court on Petitioner’s requests for an
extension of time to file an application to proceed in forma pauperis (“IFP”) on appeal
(Dkt. #17) and for the appointment of appellate counsel (Dkt. #16). For the following
reasons, the court will grant the extension of time, but will deny without prejudice
Petitioner’s request for appointment of counsel.
I. Request for Extension of Time to File IFP
Petitioner first requests an extension of time to file an application to proceed IFP
on appeal. Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a
district court action who seeks to appeal IFP must file a motion in the district court. On
appeal, the Sixth Circuit ordered that Petitioner either pay the appellate filing fee or

make a motion to proceed IFP to this court on or before June 6, 2018. See Mario Davis
v. S. Burt, 18-1515 (6th Cir. May 7, 2018). Petitioner seeks an extension of time
because of his transfer to a different prison and related delay in access to his legal
paperwork. Petitioner’s request coming only a few days after the imposed deadline, and
in light of Petitioner’s reasons for the delay, the court finds that there is good cause to
grant Petitioner an extension to file his application to proceed IFP. The court will provide
Petitioner 30 days from the deadline imposed by the Sixth Circuit—that is, until July 7,
2018. The court notes that the appeal will not move forward until Petitioner pays the
appellate filing fee or files an application to proceed IFP on appeal.
II. Request for Appellate Counsel
Petitioner also seeks the appointment of appellate counsel. “The filing of a notice
of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of
appeals and divests the district court of its control over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58
(1982); see also United States v. Garcia-Robles, 562 F.3d 763, 767–68 (6th Cir. 2009).
Because jurisdiction of this case was transferred to the Sixth Circuit upon the filing of
the notice of appeal, Petitioner’s request for the appointment of appellate counsel is
more appropriately addressed to that court. See, e.g., McBride v. Lafler, No. 06-15380,
2012 WL 3578736, at *2 (E.D. Mich. Aug. 20, 2012) (citing cases and denying same
motion). Accordingly,
IT IS ORDERED that Petitioner’s request for the appointment of appellate
counsel (Dkt. #16) is DENIED WITHOUT PREJUDICE. The denial is without prejudice
to Petitioner’s ability to file such a motion with the Sixth Circuit.

IT IS FURTHER ORDERED that Petitioner’s request for an extension of time
(Dkt. #17) is GRANTED. Petitioner will have until July 6, 2018 to file in this court a
motion to proceed IFP.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE

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Dated: June 22, 2018

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, June 22, 2018, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]
Z:\Cleland\KNP\2254\15-14420.DAVIS.Deny.Extension.Deny.Counsel.Without.Prejudice.CTB.KNP.docx

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