Bassett v. Woods

Filing 16

OPINION AND ORDER denying motion for reconsideration, and directing the Clerk of the Court to transfer 12 Motion for certificate of appealability and 15 Motion to proceed in forma pauperis the the USCA for the Sixth Circuit. Signed by District Judge John Corbett O'Meara. (DPer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
WILLIE C. BASSETT, JR.,
Petitioner,
CASE NO. 5:16-CV-13474
HONORABLE JOHN CORBETT O’MEARA
UNITED STATES DISTRICT JUDGE

v.
JEFFREY WOODS,

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 AND MOTION TO
PROCEED IN FORMA PAUPERIS ON APPEAL TO THE UNITED STATES
COURT OF APPEALS FOR THE SIXTH CIRCUIT
On June 8, 2017, this Court denied the petitioner’s application for a writ of habeas
corpus and further denied him a certificate of appealability or leave to appeal in forma
pauperis. Bassett v. Woods, No. 5:16-CV-13474, 2017 WL 2472888 (E.D. Mich. June 8,
2017).
Petitioner has filed a Notice of Appeal. Petitioner has also filed a motion for a
certificate of appealability and a motion to proceed in forma pauperis on appeal, which
this Court will treat in part as a motion for reconsideration of the Court’s previous
decision to deny petitioner a certificate of appealability or leave to appeal in forma
pauperis. For the reasons that follow, the Court will deny petitioner’s motion for
reconsideration. The Court will further order that petitioner’s motion for a certificate of
appealability and the motion to proceed in forma pauperis on appeal be transferred to the
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United States Court of Appeals for the Sixth Circuit.
The Court will deny plaintiff’s motion for reconsideration. 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).
Because this Court previously denied petitioner a certificate of appealability when
it denied the petition for writ of habeas corpus, the Court will 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. See e.g. Jackson v. Crosby, 437 F. 3d 1290, 1294, n.
5 (11th Cir. 2006). Likewise, because this Court previously denied petitioner leave to
appeal in forma pauperis when it denied the petition for writ of habeas corpus, the Court
will construe petitioner’s motion for leave to appeal in forma pauperis as a motion for
reconsideration of the Court’s prior order to deny him leave to appeal in forma pauperis
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in this case. See Pettigrew v. Rapelje, No. 08-12530-BC, 2008 WL 4186271, * 1 (E.D.
Mich. Sept. 10, 2008).
Petitioner’s motion for reconsideration will 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 denied petitioner’s habeas application and
declined to issue a certificate of appealability or leave to appeal in forma pauperis. See
Hence v. Smith, 49 F. Supp. 2d 547, 553 (E.D. Mich. 1999).
This Court 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.
The Court will also order the Clerk of the Court to transfer petitioner’s motion to
proceed in forma pauperis on appeal to the Sixth Circuit. It is well settled that the filing
of a notice of appeal transfers jurisdiction over the merits of the appeal to the appellate
court. 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 that he be permitted to proceed in
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forma pauperis in the Sixth Circuit Court of Appeals. See Glick v. U.S. Civil Service
Com’n, 567 F. Supp. 1483, 1490 (N.D. Ill. 1983); Brinton v. Gaffney, 560 F. Supp. 28,
29-30 (E.D. Pa. 1983). Because 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,
petitioner’s motion to proceed in forma pauperis on appeal would be more appropriately
addressed to the Sixth Circuit.
IT IS HEREBY ORDERED that petitioner’s motion for a reconsideration is
DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court transfer petitioner’s
“Motion for Certificate of Appealability” [Dkt. # 12] and the “Motion to Proceed In
Forma Pauperis on Appeal [Dkt. # 15] to the United States Court of Appeals for the
Sixth Circuit pursuant to 28 U.S.C. § 1631.
Date: July 13, 2017

s/John Corbett O’Meara
United States District Judge

I hereby certify that on July 13, 2017 a copy of this order was served upon the
parties of record using the ECF system, and/or by first-class U.S. mail.
s/William Barkholz
Case Manager

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