Jenkins v. Scutt, No. 2:2010cv12712 - Document 22 (E.D. Mich. 2011)

Court Description: MEMORANDUM OPINION and ORDER granting 17 Application to Proceed In Forma Pauperis on Appeal; denying 19 MOTION of Transverse in Answer and denying 15 MOTION for Certificate of Appealability (construed as motion to reconsider). Signed by District Judge Bernard A. Friedman. (CMul)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION WILLIAM JENKINS, Petitioner, Civil Action No. 10-CV-12712 v. HON. BERNARD A. FRIEDMAN DEBRA SCUTT, Respondent. / OPINION AND ORDER CONSTRUING PETITIONER S MOTION FOR CERTIFICATE OF APPEALABILITY AS MOTION FOR RECONSIDERATION, DENYING MOTION FOR RECONSIDERATION, GRANTING PETITIONER S MOTION TO PROCEED IN FORMA PAUPERIS, AND DENYING PETITIONER S MOTION OF TRAVERSE Petitioner Williams Jenkins filed a pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his convictions for first-degree felony murder, assault with intent to commit murder, and felony firearm. On March 11, 2011, the court issued an Opinion and Order Granting Respondent s Motion to Dismiss for Failure to Comply With the Statute of Limitations and Denying Certificate of Appealability. Petitioner has filed a Motion for Certificate of Appealability. Because the court already has denied a certificate of appealability (COA), the court construes petitioner s motion as requesting reconsideration of that denial. Petitioner also has filed a Motion to Proceed In Forma Pauperis and a Motion of Traverse in Answer to Respondent s Untimely Filing of Rule 5 Material. Motions for reconsideration may be granted when the moving party shows a palpable defect by which the court and the parties were misled, the correction of which will result in a different disposition of the case. See E.D. Mich. L.R. 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 declined to issue a 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 arguments for reconsideration amount to a disagreement with the court s decision. A motion predicated on such an argument is an insufficient ground upon which to grant reconsideration. See Meekison v. Ohio Dep t of Rehabilitation and Corr., 181 F.R.D. 571, 572 (S.D. Ohio 1998). Petitioner fails to demonstrate that the court s decision denying a COA was based upon a palpable defect by which the court was misled. Petitioner has also filed a Motion to Proceed In Forma Pauperis. Federal Rule of Appellate Procedure 24(a)(1) provides that a party to a district court 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. See 28 U.S.C. § 1915(a)(3). [T]he standard governing the issuance of a certificate of appealability is more demanding than the standard for determining whether an appeal is in good faith. U.S. v. Cahill-Masching, 2002 WL 15701, at *3 (N.D. Ill. Jan. 4, 2002). [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). Although the court held that a certificate of appealability should not issue, the court concludes that an appeal in this case may be taken in good faith. The court, therefore, grants petitioner s Motion to Proceed In Forma Pauperis. Finally, petitioner has filed a Motion of Traverse in Answer to Respondent s Untimely Filing of Rule 5 Material, arguing that respondent failed to comply with the court s order 2 requiring a responsive pleading and Rule 5 materials to be filed by January 20, 2011. Because respondent s motion to dismiss and Rule 5 materials were filed on that date, petitioner s motion is denied. Accordingly, IT IS ORDERED that Petitioner s Motion for Certificate of Appealability [docket entry 15], which the court has construed as a motion for reconsideration, and petitioner s Motion of Traverse in Answer to Respondent s Untimely Filing of Rule 5 Material [docket entry 19] are denied. IT IS FURTHER ORDERED that petitioner s Motion to Proceed In Forma Pauperis [docket entry 17] is granted. S/Bernard A. Friedman BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE Dated: May 26, 2011 Detroit, Michigan 3

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