Watkins v. Jackson
Filing
39
OPINION AND ORDER transferring 37 Motion for certificate of appealability and 36 Application to proceed without prepaying fees or costs to the USCA for the Sixth Circuit. Signed by District Judge Sean F. Cox. (DPer)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ANTONIO DEMOND WATKINS,
Petitioner,
v.
Civil No. 2:17-CV-11121
HONORABLE SEAN F. COX
UNITED STATES DISTRICT JUDGE
JOHN DAVIDS,
Respondent,
_________________________________/
OPINION AND ORDER DIRECTING THE CLERK OF THE COURT TO TRANSFER
THE MOTION FOR CERTIFICATE OF APPEALABILITY (ECF No. 37) AND THE
APPLICATION TO PROCEED WITHOUT PREPAYING FEES AND COSTS ON
APPEAL (ECF No. 36) TO THE UNITED STATES COURT OF APPEALS FOR THE
SIXTH CIRCUIT
Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging
his state court convictions. The Court denied the petition for writ of habeas corpus with prejudice.
The Court also denied petitioner a certificate of appealability and leave to appeal in forma
pauperis. Watkins v. Davids, No. 2:17-CV-11121, 2020 WL 4431430 (E.D. Mich. July 31, 2020).
Petitioner filed a Notice of Appeal. (ECF No. 35). Petitioner has also filed a motion for a
certificate of appealability (ECF No. 37) and an application to proceed without prepaying fees and
costs on appeal. (ECF No. 36).
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)). Petitioner should
direct his request for a certificate of appealability to the Sixth Circuit. The Court, in the interests
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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.
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 )); See also 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 to proceed without prepaying fees and costs on appeal. 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, thus, petitioner’s motion would be more appropriately addressed to the
Sixth Circuit. See Grizzell v. State of Tennessee, 601 F. Supp. 230, 232 (M.D. Tenn. 1984). The
Court orders that the Clerk of the Court to transfer petitioner’s motion to procced without
prepaying fees and costs on appeal to the United States Court of Appeals for the Sixth Circuit
pursuant to 28 U.S.C. § 1631.
IT IS HEREBY ORDERED that:
The Clerk of the Court is ORDERED to transfer the “Motion for Certificate of
Appealability” (ECF No. 37) and the “Application to Proceed Without Prepaying Fees and Costs
on Appeal” (ECF No. 36) to the United States Court of Appeals for the Sixth Circuit pursuant to
28 U.S.C. § 1631.
Dated: September 15, 2020
s/Sean F. Cox
Sean F. Cox
U. S. District Judge
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