Cruz-Rivera v. Palmer

Filing 13

ORDER denying 10 Applicaton to proceed in forma pauperis on appeal and transferring request to the USCA for the Sixth Circuit. Signed by District Judge Joseph M. Hood. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIGUEL ANGEL CRUZ-RIVERA, #768420,
Petitioner,
CASE NO. 2:16-CV-13993
HON. DENISE PAGE HOOD

v.
CARMEN PALMER,
Respondent.
/

ORDER DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS
ON APPEAL AND TRANSFERRING REQUEST TO THE SIXTH CIRCUIT
This matter is before the Court on Petitioner’s application to proceed in
forma pauperis on appeal [Dkt. #10] regarding the dismissal of his habeas
petition as untimely. The Court denied a certificate of appealability and
denied leave to proceed in forma pauperis on appeal in its opinion dismissing
the petition [Dkt. #7]. Consequently, the Court shall construe Petitioner’s
current application as a request for reconsideration. See, e.g., Jackson v.
Crosby, 437 F.3d 1290, 1294 n. 5 (11th Cir. 2006); Lyons v. Lafler, No. 2:10CV-11386, 2013 WL 812083, *1 (E.D. Mich. March 5, 2013). The Court finds
no reason to reconsider its prior decision. A motion for reconsideration which
presents issues already ruled upon by the Court, either expressly or by
reasonable implication, will not be granted. Hence v. Smith, 49 F. Supp. 2d

547, 550 (E.D. Mich. 1999); Czajkowski v. Tindall & Assoc., P.C., 967 F.
Supp. 951, 952 (E.D. Mich. 1997). Such is the case here. Petitioner has not
met his burden of showing a palpable defect by which the Court has been
misled or his burden of showing that a different disposition must result from
a correction thereof as required by Local Rule 7.1(h)(3). Accordingly, the
Court denies his application to proceed in forma pauperis on appeal.
When a district court denies a certificate of appealability and denies
leave to proceed in forma pauperis on appeal, the proper procedure is for the
habeas petitioner to file a motion for a certificate of appealability and/or an
application for leave to proceed in forma pauperis on appeal with the appellate
court. See Sims v. United States, 244 F.3d 509 (6th Cir. 2011) (citing Fed. R.
App. P. 22(b)(1)). Accordingly, in the interests of justice, the Court transfers
the application to proceed in forma pauperis on appeal to the United States
Court of Appeals for the Sixth Circuit.1
IT IS SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: August 30, 2017

1

Petitioner filed a notice of appeal at the time he filed the instant application.
2

I hereby certify that a copy of the foregoing document was served upon
counsel of record on August 30, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

3