UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SCOTT ANDREW WITZKE,

Petitioner,

CIVIL NO. 2:15-CV-12429

v. HONORABLE DENISE PAGE HOOD

CHIEF UNITED STATES DISTRICT JUDGE

SHAWN BREWER,

Respondent.

________________________________/

OPINION AND ORDER DENYING THE MOTION FOR

RECONSIDERATION AND/OR A CERTIFICATE OF APPEALABILITY

This Court summarily dismissed the petition for a writ of habeas

corpus on the ground that petitioner failed to exhaust his claims regarding

his parole revocation and did not show that it would be futile to do so.

Witzke v. Brewer, No. 2:15-CV-12429, 2015 WL 6108301 (E.D. Mich. Oct.

16, 2015). The Court declined to issue a certificate of appealability but

granted petitioner leave to appeal in forma pauperis. 

The Sixth Circuit granted petitioner a certificate of appealability on his

claim that this Court erred in dismissing his habeas petition on exhaustion

grounds, appointed counsel for petitioner, and ordered briefing. Witzke v.

Brewer, No. 15-2437 (6th Cir. May 10, 2016). A decision has not been

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rendered in that case yet. 

On May 26, 2016, petitioner was released on parole by the Michigan

Parole Board.

Petitioner filed a motion to be released on bond pending a decision

by the Sixth Circuit. On July 27, 2016, this Court denied the motion as

moot, because petitioner had been released on parole.

Petitioner has filed a motion for reconsideration of the Court’s

decision to deny parole. In the alternative, petitioner moves for a certificate

of appealability on his bond issue. For the reasons that follow, the motion

is DENIED. 

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. Id.; See also Flanagan v.

Shamo, 111 F. Supp. 2d 892, 894 (E.D. Mich. 2000). The movant shall not

only demonstrate a palpable defect by which the Court and the parties

have been misled but also show that a different disposition of the case

must result from a correction thereof. A palpable defect is a defect that is

obvious, clear, unmistakable, manifest, or plain. Witzke v. Hiller, 972 F.

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Supp. 426, 427 (E.D. Mich. 1997). 

Petitioner is merely attempting to re-hash arguments that he

previously raised in his motion to be released on bond. The Court will

therefore deny petitioner’s motion for reconsideration, 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 bond motion. See Hence v. Smith, 49 F. Supp. 2d 547, 553

(E.D. Mich. 1999).

Petitioner in the alternative requests a certificate of appealability from

the Court’s denial of his bond motion.

The Sixth Circuit Court of Appeals has yet to formally address

whether a certificate of appealability is required to appeal the denial of a

habeas petitioner’s motion for release on bond. See Lordi v. Ishee, 22 F.

App’x. 585, 586 (6th Cir. 2001). However, the Sixth Circuit Court of

Appeals had held that “a certificate of probable cause is a prerequisite to

appealing the denial of a bail motion in a habeas proceeding.” Lee v. Jabe,

989 F.2d 869, 871 (6th Cir. 1993). The rule concerning certificates of

appealability is basically the same as the rule governing certificates of

probable cause. See Sims v. U.S., 244 F. 3d 509 (6th Cir. 2001). This

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Court assumes a certificate of appealability is a necessary prerequisite to

the filing of an appeal from the denial of a habeas petitioner’s motion for

release on bond. See Wingo v. U.S., 341 F. App’x. 132, 138-39 (6th Cir.

2009)(Moore, J., dissenting)(Sixth Circuit lacked jurisdiction over appeal

from the district court’s denial of bond pending appeal of the denial of a

motion to vacate sentence when no certificate of appealability granted on

that issue).

The Court will deny petitioner a certificate of appealability, because

jurists of reason would not find this Court’s denial of his bond motion to be

debatable.

ORDER

Accordingly, the Court the Motion For Reconsideration And/Or Motion

for a Certificate of Appealability [Dkt. # 31] is DENIED. 

S/Denise Page Hood 

Denise Page Hood

Chief Judge, United States District Court

Dated: September 9, 2016

I hereby certify that a copy of the foregoing document was served upon

counsel of record on September 9, 2016, by electronic and/or ordinary

mail.

S/LaShawn R. Saulsberry 

Case Manager

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