Hunter v. LeSatz

Filing 18

ORDER Denying 15 MOTION for Certificate of Appealability, which the Court has construed as a Motion for Reconsideration, and Granting 14 Application to Proceed Without Prepaying Fees or Costs - Signed by District Judge Nancy G. Edmunds. (LBar)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

FELANDO D. HUNTER,
Case Number: 2:18-CV-11117
HON. NANCY G. EDMUNDS

Petitioner,
v.
DANIEL LESATZ,
Respondent.
/

ORDER CONSTRUING MOTION FOR CERTIFICATE OF APPEALABILITY
AS MOTION FOR RECONSIDERATION, DENYING RECONSIDERATION,
AND GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL
Petitioner Felando D. Hunter filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254. On April 30, 2020, the Court denied the petition and denied a
certificate of appealability. (See ECF No. 11.) Petitioner has now filed a Motion for
Certificate of Appealability (ECF No. 15) and an Application to Proceed on Appeal
Without Prepayment of Fees and Costs (ECF No. 14). Because the Court already denied
a certificate of appealability, the Court construes Petitioner’s motion as requesting
reconsideration of its decision and denies reconsideration. The Court grants Petitioner
leave to proceed in forma pauperis on appeal.
Motions for reconsideration may be granted when the moving party shows (1) a
“palpable defect,” (2) by which the court and the parties were misled, and (3) the
correction of which will result in a different disposition of the case. E.D. Mich. L.R.

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7.1(h)(3). A “palpable defect” is a “defect which is obvious, clear, unmistakable,
manifest or plain.” Olson v. The Home Depot, 321 F. Supp. 2d 872, 874 (E.D. Mich.
2004).
The Court denied a certificate of appealability (COA) because reasonable jurists
could not “debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner” or that the issues presented were “adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citation omitted). Petitioner’s motion simply reasserts arguments advanced in his
petition and, therefore, fails to allege sufficient grounds upon which to grant
reconsideration. L.R. 7.1(h)(3) (“[T]he Court will not grant motions for rehearing or
reconsideration that merely present the same issues relied upon by the Court, either
expressly or by reasonable implication.”). The Court’s decision denying a COA was not
based upon a palpable defect by which the Court was misled and the Court will deny the
motion.
Also before the Court is Petitioner’s request to proceed in forma pauperis on
appeal. Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a districtcourt action who desires to appeal in forma pauperis must file a motion in the district
court. An appeal may not be taken in forma pauperis if the court determines that it is not
taken in good faith. 28 U.S.C. § 1915(a)(3). “[T]o determine that an appeal is in good
faith, a court need only find that a reasonable person could suppose that the appeal has
some merit.” Walker v. O’Brien, 216 F.3d 626, 631 (7th Cir. 2000). While the Court
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held that jurists of reason would not find the Court’s decision that the petition was
meritless to be debatable or wrong, the Court finds that an appeal may be taken in good
faith.
Accordingly, the Court DENIES Petitioner’s Motion for Certificate of
Appealability (ECF No. 15), which the Court has construed as a Motion for
Reconsideration. The Court GRANTS Petitioner’s Application to Proceed on Appeal
Without Prepayment of Fees and Costs (ECF No. 14).
SO ORDERED.

s/ Nancy G. Edmunds
NANCY G. EDMUNDS
UNITED STATES DISTRICT JUDGE
DATED: January 5, 2021

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