Sims v. McKee
Filing
7
OPINION AND ORDER Denying the Motion for Reconsideration and Directing the Clerk of the Court to Transfer the Motion for a Certificate of Appealability to the USCA for the Sixth Circuit. Signed by District Judge Mark A. Goldsmith. (PMil)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CORDARELL ISIAH SIMS,
Petitioner,
Civil Action. No.
13-cv-11959
v.
HONORABLE MARK A. GOLDSMITH
KENNETH McKEE,
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 TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
Cordarell Isiah Sims, (Petitioner”), filed a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254, in which he challenged his convictions for one count of first-degree home
invasion, Mich. Comp. Laws § 750.110a(2); one count of conspiracy to commit first-degree
home invasion, Mich. Comp. Laws §§ 750.157a and 750.110a(2); and one count of assault with
intent to do great bodily harm, M.CL.A. 750.84. On August 22, 2013, this Court summarily
denied petitioner’s application for a writ of habeas corpus, declined to issue a certificate of
appealability, but granted petitioner leave to appeal in forma pauperis. Sims v. McKee, No. 13cv-11959, 2013 WL 4502191 (E.D. Mich. August 22, 2013).
Petitioner has now filed a notice of appeal with the United States Court of Appeals.
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
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reconsideration.
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.
However, a motion for reconsideration which presents the same issues already ruled upon by the
court, either expressly or by reasonable implication, will not be granted. Ford Motor Co. v.
Greatdomains.com, Inc., 177 F. Supp. 2d 628, 632 (E.D. Mich. 2001); See also Williams v.
McGinnis, 192 F. Supp. 2d 757, 759 (E.D. Mich. 2002). 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.
Williams, 192 F. Supp. 2d at 759; MCI Telecommunications Corp. v. Michigan Bell Telephone
Co., 79 F. Supp. 2d 768, 797 (E.D. Mich. 1999). A palpable defect is a defect that is obvious,
clear, unmistakable, manifest, or plain. Witzke v. Hiller, 972 F. Supp. 426, 427 (E.D. Mich.
1997).
Other than conclusory or unsupported allegations, petitioner has failed to advance any
arguments in his motion for a certificate of appealability which shows that this Court erred in
denying the petition for writ of habeas corpus and in declining to issue a certificate of
appealability. A habeas petitioner’s conclusory assertion that jurists of reason would find his or
her claims to be debatable is insufficient to warrant the issuance of a certificate of appealability.
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See Babgy v. Saffle, 53 Fed. Appx. 25, 28 (10th Cir. 2002).
Petitioner’s request for
reconsideration will therefore 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 denied petitioner’s application for writ of habeas corpus and denied him 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.
IT IS HEREBY ORDERED that petitioner’s request for reconsideration of the Court’s
previous denial of a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court transfer petitioner’s “Motion
for Certificate of Appealability” [Dkt. # 5] to the United States Court of Appeals for the Sixth
Circuit pursuant to 28 U.S.C. § 1631.
SO ORDERED.
Dated: October 10, 2013
Flint, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
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CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record
and any unrepresented parties via the Court's ECF System to their respective email or First Class
U.S. mail addresses disclosed on the Notice of Electronic Filing on October 10, 2013.
s/Deborah J. Goltz
DEBORAH J. GOLTZ
Case Manager
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