Brown v. Warden, Warren Correctional Institution
Filing
93
DECISION AND ORDER denying 92 "Writ" for Certificate of Appealability. Signed by Judge Thomas M. Rose on 8-17-2018. (de)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JEFFREY ANTONIO BROWN,
Petitioner,
:
- vs -
Case No. 3:17-cv-080
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz
CHAE HARRIS, Warden,
Warren Correctional Institution,
:
Respondent.
DECISION AND ORDER DENYING “WRIT” FOR CERTIFICATE
OF APPEALABILITY
This case is before the Court on Petitioner’s “Writ” for Certificate of Appealability (ECF
No. 92). As the Court has previously explained to Petitioner, litigants do not have authority to
issue writs, which are court orders. Because in the first paragraph of the document, Petitioner
“requests” a certificate of appealability, the Court will treat this filing as a motion.
Petitioner seeks a certificate of appealability “on all claims.” On May 4, 2018, the Court
dismissed his Petition with prejudice, including all the claims made in the case (ECF No. 53).
Petitioner is correct that decisions on certificates of appealability are to be made in the first instance
by the District Court. Kincade v. Sparkman, 117 F.3d 949 (6th Cir. 1997). To carry out that
policy, the Supreme Court enacted Rule 11(a) of the Rules Governing § 2254 Proceedings which
provides that “[t]he district court must issue or deny a certificate of appealability when it enters a
final judgment adverse to the applicant.”
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As required by Rule 11(a), this Court already denied a certificate of appealability when it
entered judgment dismissing all claims (Decision and Order, ECF No. 53, at PageID 3965). On
May 31, 2018, Petitioner filed his “Writ for New Trial” (ECF No. 69) which the Court denied on
June 18, 2018 (ECF No. 75). No certificate of appealability determination was made in that Order
because it was not deciding any habeas corpus grounds for relief. The Court advised Petitioner in
that Order that the May 4, 2018, decision with the accompanying judgment was “a final appealable
order of this Court which Petitioner may appeal to the Sixth Circuit Court of Appeals upon
obtaining from that court a certificate of appealability . . .” (ECF No. 75, PageID 4088; emphasis
added). Thereafter on July 10, 2018, Petitioner filed a Notice of Appeal (ECF No. 90).
The filing of a Notice of Appeals deprives this Court of jurisdiction to reconsider its denial
of a certificate of appealability. Filing a notice of appeal divests the District Court of jurisdiction
over a case and vests jurisdiction in the Circuit Court of Appeals until the district court receives
the mandate of the court of appeals. Marrese v. American Academy of Osteopathic Surgeons, 470
U.S. 373 (1985); Pickens v. Howes, 549 F.3d 377, 381 (6th Cir. 2008); Pittock v. Otis Elevator Co.,
8 F.3d 325, 327 (6th Cir. 1993); Lewis v. Alexander, 987 F.2d 392, 394 (6th Cir. 1993); Cochran v.
Birkel, 651 F.2d 1219, 1221 (6th Cir. 1981).
Therefore Petitioner’s Motion (styled as a “Writ”) is denied for lack of jurisdiction.
August 17, 2018
*s/Thomas M. Rose
_____________________________
Thomas M. Rose
United States District Judge
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