UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JEFFREY J. BROWN,

Petitioner,

v.

BLAINE LAFLER,

Respondent. 

 /

Case No. 09-10852

OPINION AND ORDER DENYING PETITIONER’S MOTION FOR CERTIFICATE OF

APPEALABILITY AND GRANTING PETITIONER’S APPLICATION TO PROCEED 

IN FORMA PAUPERIS ON APPEAL

On December 14, 2010, this court issued an opinion and order dismissing the

petition for writ of habeas corpus and declining to issue a certificate of appealability.

See Brown v. Lafler, No. 2010 WL 5148498 (E.D. Mich. December 14, 2010). Petitioner

filed a notice of appeal with the Sixth Circuit on January 14, 2011. On the same day,

Petitioner filed a motion for a certificate of appealability and a motion to proceed in

forma pauperis on appeal. For the reasons discussed below, the court will deny

Petitioner’s motion for a certificate of appealability but will grant the application to

proceed in forma pauperis on appeal.

Having already declined to issue a certificate of appealability, the court receives

Petitioner’s motion as a motion for reconsideration. Eastern District of Michigan Local

Rule 7.1(h) provides that a motion for reconsideration shall be granted if the movant can

“demonstrate a palpable defect by which the court and the parties and other persons

entitled to be heard on the motion have been misled,” and show that “correcting the

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defect will result in a different disposition of the case.” E.D. Mich. LR 7.1(h)(3). 

Petitioner has presented nothing in his motion to demonstrate a palpable defect;

instead, he has presented the same arguments already considered by the court in

denying the habeas petition and declining to issue a certificate of appealability. A

motion for reconsideration that presents issues already ruled upon by the court, either

expressly or by reasonable implication, will not be granted. See Hence v. Smith, 49

F.Supp.2d 547, 550 (E.D. Mich. 1999); Czajkowski v. Tindall & Assoc., P.C., 967

F.Supp. 951, 952 (E.D. Mich. 1997). Accordingly, the court will deny Petitioner’s motion

for a certificate of appealability. 

Petitioner also seeks leave to proceed in forma pauperis on appeal. See Fed. R.

App. P. 24(a)(1). An appeal may not be taken in forma pauperis if the court determines

that it is not taken in good faith. 28 U.S.C. § 1915(a)(3). Although the court has

declined to issue a certificate of appealability in this case, the court cannot certify that

the appeal is not taken in good faith. The court will therefore allow Petitioner to proceed

in forma pauperis on appeal. Accordingly,

IT IS ORDERED that Petitioner’s “Motion for Certificate of Appealability” [Dkt. #

24] is DENIED.

IT IS FURTHER ORDERED that Petitioner’s application to proceed in forma

pauperis on appeal [Dkt. # 23] is GRANTED. 

s/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: February 8, 2011

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I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, February 8, 2011, by electronic and/or ordinary mail.

s/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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