Johnson v. State of Michigan

Filing 10

OPINION AND ORDER denying motion for reconsideration and directing the Clerk of the Court ot transfer 9 Motion for a certificate of appealabiltiy to the USCA for the Sixth Circuit. Signed by District Judge Arthur J. Tarnow. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
STEVEN A. JOHNSON, # 44964-039
Petitioner,

Civil No. 2:16-CV-13215
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

v.
STATE OF MICHIGAN,
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. # 9] TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Petitioner filed a petition for writ of habeas corpus, challenging his
conviction for carrying a concealed weapon. On October 4, 2016, this Court
summarily dismissed without prejudice the petition for writ of habeas corpus,
declined to issue a certificate of appealability, but granted petitioner leave to
appeal in forma pauperis. Johnson v. Michigan, No. 2:16-CV-13215, 2016 WL
5791453 (E.D. Mich. Oct. 4, 2016).
Petitioner has now filed a notice of appeal with the United States Court of
Appeals for the Sixth Circuit. Petitioner has also filed a motion for a certificate of
appealability, which this Court will treat in part as a motion for reconsideration of
the Court’s prior decision to deny petitioner a certificate of appealability. For the
reasons that follow, the Court will deny petitioner’s motion for reconsideration.
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Johnson v. State of Michigan, U.S.D.C. No. 2:16-CV-13215
The Court will further order that petitioner’s motion for a certificate of appealability
be transferred to the United States Court of Appeals for the Sixth Circuit.
Because this Court previously denied petitioner a certificate of appealability
when it denied the petition for writ of habeas corpus, the Court will initially 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 in this case. See e.g.
Jackson v. Crosby, 437 F. 3d 1290, 1294, n. 5 (11th Cir. 2006).
U.S. Dist.Ct. Rules, E.D. Mich. 7.1 (h) allows a party to file a motion for
reconsideration. 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 that a different disposition of the case must result from a correction
thereof. Ward v. Wolfenbarger, 340 F. Supp. 2d 773, 774 (E.D. Mich. 2004)(citing
L.R. 7.1(g)(3)). A motion for reconsideration which merely presents “the same
issues ruled upon by the Court, either expressly or by reasonable implication,”
shall be denied. Id.
In his motion for a certificate of appealability, petitioner advances the same
arguments that he made in his initial petition for writ of habeas corpus and which
were considered and addressed by this Court when the Court summarily
dismissed the petition for writ of habeas corpus and declined to grant petitioner a
certificate of appealability. Petitioner’s request for reconsideration will therefore
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Johnson v. State of Michigan, U.S.D.C. No. 2:16-CV-13215
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 summarily dismissed the petition for writ of habeas corpus and declined to
issue a certificate of appealability. See Hence v. Smith, 49 F. Supp. 2d 547, 553
(E.D. Mich. 1999).
This Court further 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 motion for a certificate of appealability to be transferred to the
United States Court of Appeals for the Sixth Circuit.
ORDER
IT IS HEREBY ORDERED that petitioner’s request for reconsideration of
the Court’s previous denial of a certificate of appealability is DENIED.

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Johnson v. State of Michigan, U.S.D.C. No. 2:16-CV-13215
IT IS FURTHER ORDERED that the Clerk of the Court transfer petitioner’s
“Motion for A Certificate of Appealability” [Dkt. # 9] to the United States Court of
Appeals for the Sixth Circuit pursuant to 28 U.S.C. § 1631.

Dated: October 25, 2016

s/Arthur J. Tarnow
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

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