Dupree v. Gidley

Filing 24

OPINION AND ORDER denying motion for reconsideration and directing the Clerk of Court to transfer 20 Application to proceed without prepaying fees or costs on appeal and 22 Motion for certificate of appealability to the USCA for the Sixth Circuit. Signed by District Judge George Caram Steeh. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
YUL DUPREE,
Petitioner,
CASE NO. 2:16-CV-12821
HON. GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE

v.
LORI GIDLEY,
Respondent.
_________________________/

OPINION AND ORDER DENYING THE MOTION FOR
RECONSIDERATION AND DIRECTING THE CLERK OF THE COURT
TO TRANSFER THE MOTION FOR A CERTIFICATE OF APPEALABILITY
(Dkt. # 22) AND THE APPLICATION TO PROCEED WITHOUT
PREPAYING FEES OR COSTS ON APPEAL (Dkt. # 20) TO THE
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Yul Lynn Dupree, (“petitioner”), filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, in which he challenged his conviction for
first-degree home invasion, M.C.L. § 750.110a(2). This Court denied the petition
with prejudice and declined to issue a certificate of appealability or to grant leave
to appeal in forma pauperis. Petitioner filed a notice of appeal on April 30, 2018.
Petitioner also filed a motion for a certificate of appealability and an application to
proceed without prepayment of fees and costs on appeal, which this Court will
treat in part as a motion for reconsideration of the Court’s previous decision to
deny petitioner a certificate of appealability or leave to appeal in forma pauperis.
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For the reasons that follow, the Court will deny petitioner’s motion for
reconsideration. The Court will further order that petitioner’s motion for a
certificate of appealability and the application to proceed without prepayment of
fees and costs to 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).
Because this Court previously denied petitioner a certificate of appealability
when it denied the petition for writ of habeas corpus, the Court will construe
petitioner’s motion for a certificate of appealability as a motion for reconsideration
of the Court’s prior order to deny a certificate of appealability. See e.g. Jackson v.
Crosby, 437 F.3d 1290, 1294, n. 5 (11th Cir. 2006). Likewise, because this Court
previously denied petitioner leave to appeal in forma pauperis when it denied the
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petition for writ of habeas corpus, the Court will construe petitioner’s application
to proceed without prepayment of fees and costs on appeal as a motion for
reconsideration of the Court’s prior order to deny him leave to appeal in forma
pauperis in this case. See Pettigrew v. Rapelje, No. 2008 WL 4186271, *1 (E.D.
Mich. Sept. 10, 2008).
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 denied petitioner’s
habeas application and declined to issue a certificate of appealability or leave to
appeal in forma pauperis. 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 a 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 motion for a certificate of appealability to be transferred to the United
States Court of Appeals for the Sixth Circuit.
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The Court will also order the Clerk of the Court to transfer petitioner’s
motion to proceed in forma pauperis on appeal to the Sixth Circuit. It is well
settled that the filing of a notice of appeal transfers jurisdiction over the merits of
the appeal to the appellate court. Workman v. Tate, 958 F.2d 164, 167 (6th Cir.
1992). Petitioner’s notice of appeal divests this Court of jurisdiction to consider
his motion that he be permitted to proceed in forma pauperis in the Sixth Circuit
Court of Appeals. See 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
application to proceed without prepayment of fees and costs on appeal would be
more appropriately addressed to the Sixth Circuit.
IT IS HEREBY ORDERED that petitioner’s motion for a reconsideration is
DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court transfer petitioner’s
“Motion for Certificate of Appealability” [Dkt. # 22] and the “Application to Proceed
Without Prepaying Fees or Costs on Appeal [Dkt. # 20] to the United States Court
of Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.

Dated: July 12, 2018
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
July 12, 2018, by electronic and/or ordinary mail and also on
Yul Dupree #194248, Central Michigan Correctional Facility,
320 N. Hubbard, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk

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