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

UNITED STATES DISTRICT JUDGE

SHAWN BREWER,

Respondent.

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OPINION AND ORDER DENYING THE MOTION TO ALTER OR AMEND

JUDGMENT AND/OR THE MOTION FOR RECONSIDERATION,

DENYING A CERTIFICATE OF APPEALABILITY FROM THE DENIAL OF

THE MOTION, AND GRANTING LEAVE TO APPEAL IN FORMA

PAUPERIS FROM THE DENIAL OF THE MOTION

On October 16, 2015, 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

Court denied as moot petitioner’s motion to compel service of the Rule 5

materials. Id.

Petitioner has filed a motion to alter or amend judgment and/or a

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motion for reconsideration. For the reasons that follow, the motion is

DENIED.

A motion to alter or amend judgment brought by a habeas petitioner

pursuant to Rule 59 (e) may properly be analyzed as a motion for

reconsideration pursuant to Local Rule 7.1 of the Eastern District of

Michigan. See Hence v. Smith, 49 F. Supp. 2d 547, 550 (E.D. Mich. 1999).

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). 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

show that correcting the defect will lead to a different disposition of the

case. See e.g. Taylor v. DaimlerChrysler AG, 313 F. Supp. 2d 703, 706

(E.D. Mich. 2004); aff’d 124 Fed. Appx. 661 (6th Cir. 2005).

Petitioner alleges that this Court erred in summarily dismissing his

petition on exhaustion grounds, arguing that it would be futile for him to

attempt to exhaust his parole revocation claims because the State of

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Michigan does not provide any available remedies with which he can do

so. Petitioner also claims that this Court erred in denying his motion to

compel service of the Rule 5 materials.

Petitioner in his original petition argued that he had no available state

court remedies with which to exhaust his claims. This Court at great length

rejected petitioner’s futility argument in the opinion and order of summary

dismissal. Because the Court summarily dismissed the petition, the Court

further believed that there was no reason to order that the Rule 5 materials

be served on petitioner. Because petitioner’s motion presents the same

issues previously ruled upon by the Court, petitioner is unable to establish

that he is entitled to have the Court reconsider its previous decision to

summarily dismiss his petition for writ of habeas corpus. Taylor, 313 F.

Supp. 2d at 706. The motion to alter or amend judgment and/or the motion

for reconsideration is denied.

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

motion for reconsideration in a habeas case. See e.g. Amr v. U.S., 280

Fed. Appx. 480, 486 (6th Cir. 2008)(issue of whether district court abused

its discretion in denying defendant’s motion for reconsideration was not the

issue he was granted authority to appeal by district court in certificate of

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appealability, rendering the Court of Appeals without authority to reach the

merits of claim challenging calculation of time period for filing motion for

reconsideration). This Court will deny petitioner a certificate of

appealability, because jurists of reason would not find this Court’s

resolution of petitioner’s motion for reconsideration to be debatable.

Although this Court will deny a certificate of appealability to

petitioner, the standard for granting an application for leave to proceed in

forma pauperis (IFP) is a lower standard than the standard for certificates

of appealability. See Foster v. Ludwick, 208 F. Supp. 2d 750, 764 (E.D.

Mich. 2002)(citing United States v. Youngblood, 116 F. 3d 1113, 1115 (5th

Cir. 1997)). Whereas a certificate of appealability may only be granted if

petitioner makes a substantial showing of the denial of a constitutional

right, a court may grant IFP status if it finds that an appeal is being taken in

good faith. Id. at 764-65; 28 U.S.C. § 1915(a)(3); Fed. R.App.24 (a).

“Good faith” requires a showing that the issues raised are not frivolous; it

does not require a showing of probable success on the merits. Foster, 208

F. Supp. 2d at 765. Although jurists of reason would not debate this

Court’s resolution of petitioner’s motion to alter or amend judgment and/or

for reconsideration, the issues are not frivolous; therefore, an appeal could

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be taken in good faith and petitioner may proceed in forma pauperis on

appeal. Id.

ORDER

Accordingly, the Court DENIES the Motion to Alter or Amend

Judgment and/or Motion for Reconsideration. [Dkt. # 20].

The Court further DENIES a certificate of appealability.

The Court grants petitioner leave to appeal in forma pauperis.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: November 10, 2015

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

counsel of record on November 10, 2015, by electronic and/or ordinary

mail.

S/LaShawn R. Saulsberry 

Case Manager

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