Varner v. Gidley

Filing 62

ORDER transferring 60 Application to proceed without prepaying fees or costs to USCA for the Sixth Circuit. Signed by District Judge Avern Cohn. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KEVIN SCOTT VARNER,
Petitioner,

Case No. 16-14388

v.

HON. AVERN COHN

JOHN CHRISTIANSEN,
Respondent.
_____________________________/
ORDER TRANSFERRING PETITIONER’S MOTION TO PROCEED IN FORMA
PAUPERIS ON APPEAL (Doc. 60)
TO THE COURT OF APPEALS FOR THE SIXTH CIRCUIT
I.
This is a habeas case under 28 U.S.C. § 2254 which has long since closed. In
2016, Kevin Scott Varner (Petitioner) filed a pro se petition, challenging his 2014
convictions for unlawful possession of controlled substances with intent to deliver and
resisting and obstructing a police officer. In 2017, the Court denied relief and declined to
issue a certificate of appealability. (Doc. 26). Petitioner then filed several motions
following the denial of habeas relief. Most recently, Petitioner filed a Motion for
Amended or Additional Findings (Doc. 53) and Motion to an Evidentiary Hearing (Doc.
57). The Court denied both motions. (Doc. 58).
On May 6, 2019, Petitioner filed a notice of appeal. (Doc. 59) and a motion to
proceed in forma pauperis on appeal. (Doc. 60). For the reasons that follow, the
motion will be transferred to the Court of Appeals for the Sixth Circuit.

II.
A notice of appeal generally “confers jurisdiction on the court of appeals and
divests the district court of control over those aspects of the case involved in the
appeal.” Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379
(1985)(citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)(per
curiam ). 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 Johnson v. Woods, 2013 WL 557271, * 2 (E.D. Mich. Feb. 13, 2013).
Moreover, the motion to proceed in forma pauperis on appeal would be more
appropriately addressed by the Sixth Circuit.
Accordingly, the Clerk shall transfer Petitioner’s “Motion to Proceed In Forma
Pauperis (Doc. 60) to the Sixth Circuit under 28 U.S.C. § 1631.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 5/20/2019
Detroit, Michigan

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