Marshall v. Winn

Filing 17

OPINION and ORDER Denying the 16 MOTION for Certificate of Appealability and 13 MOTION for Certificate of Appealability and Directing the Clerk of Court to Transfer the Motions for Certificate of Appealability to the United States Court of Appeals for the Sixth Circuit. Signed by District Judge Denise Page Hood. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CALVIN E. MARSHALL,
Petitioner,
v.

Case No. 2:16-CV-12016
HONORABLE DENISE PAGE HOOD
CHIEF UNITED STATES DISTRICT JUDGE

THOMAS WINN,
Respondent,
_________________________________/
OPINION AND ORDER DENYING THE MOTION FOR
RECONSIDERATION AND DIRECTING THE CLERK OF THE COURT TO
TRANSFER THE MOTIONS FOR A CERTIFICATE OF APPEALABILITY
[Dkt. # 13, 16] TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
Calvin E. Marshall, (“Petitioner”), filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction
and sentence for six counts of assault with intent to commit murder. This
Court denied the petition for writ of habeas corpus, declined to issue a
certificate of appealability, and granted petitioner leave to appeal in forma
pauperis.
Petitioner has filed a notice of appeal. Petitioner has also filed two
motions for a certificate of appealability. In his first motion for a certificate
of appealability, petitioner explicitly requests this Court to reconsider its
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decision to deny him a certificate of appealability.
For the reasons that follow, the Court will deny petitioner’s motion for
reconsideration. The Court will further order that petitioner’s motions for a
certificate of appealability be transferred to the United States Court of
Appeals for the Sixth Circuit.
The Court will deny plaintiff’s motion for reconsideration. U.S.
Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for
reconsideration. However, a motion for reconsideration which presents the
same issues already ruled upon by the court, either expressly or by
reasonable implication, will not be granted. Ford Motor Co. v.
Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001). A
motion for reconsideration should be granted if the movant demonstrates a
palpable defect by which the court and the parties have been misled and
show that correcting the defect will lead to a different disposition of the
case. See DirecTV, Inc. v. Karpinsky, 274 F. Supp. 2d 918, 921 (E.D. Mich.
2003).
Petitioner’s motion for reconsideration will be denied, because
petitioner is merely presenting issues which were already ruled upon by
this Court, either expressly or by reasonable implication, when the Court

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denied petitioner’s habeas application and declined to issue a certificate of
appealability. See Hence v. Smith, 49 F. Supp. 2d 547, 553 (E.D. Mich.
1999).
This Court notes that the proper procedure when a district court
denies a certificate of appealability is for the 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)). In light of the fact that this Court has already
denied petitioner a certificate of appealability, petitioner should direct his
request for a certificate of appealability to the Sixth Circuit. The Court, in
the interests of justice, will order that petitioner’s motions for a certificate of
appealability to be transferred to the United States Court of Appeals for the
Sixth Circuit.
IT IS HEREBY ORDERED that petitioner’s motion for a
reconsideration is DENIED.

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IT IS FURTHER ORDERED that the Clerk of the Court transfer
petitioner’s two motions for a certificate of appealability [Dkt. # 13, 16] to
the United States Court of Appeals for the Sixth Circuit pursuant to 28
U.S.C. § 1631.
s/Denise Page Hood
HON. DENISE PAGE HOOD
Dated: December 29, 2016 CHIEF UNITED STATES DISTRICT JUDGE

I hereby certify that a copy of the foregoing document was served upon
counsel of record on December 29, 2016, by electronic and/or ordinary
mail.
s/Teresa McGovern
Case Manager Generalist

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