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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PHILLIP HERNDON, #231404,

Petitioner,

CASE NO. 2:09-CV-12213

v. HONORABLE PATRICK J. DUGGAN

CINDI CURTAIN,

Respondent.

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ORDER DENYING MOTIONS TO HOLD CERTIFICATE OF APPEALABILITY

IN ABEYANCE, TO PROCEED IN FORMA PAUPERIS ON APPEAL, TO

APPOINT COUNSEL, AND FOR PRODUCTION OF DOCUMENTS

At a session of said Court, held in the U.S. 

District Courthouse, Eastern District

 of Michigan on May 18, 2010.

PRESENT: HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

This matter is before the Court on Petitioner’s motions to hold a certificate of

appealability in abeyance, to proceed in forma pauperis on appeal, to appoint counsel, and

for production of documents. On March 15, 2010, the Court dismissed his habeas corpus

petition for failure to comply with the applicable one-year statute of limitations. See 28

U.S.C. § 2244(d). The Court denied a certificate of appealability and denied leave to proceed

in forma pauperis on appeal in its dismissal order. The Court finds no reason to reconsider

that decision. A motion for reconsideration which presents issues already ruled upon by the
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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). Petitioner has not met his burden of showing a palpable

defect by which the Court has been misled or his burden of showing that a different

disposition must result from a correction thereof, as required by Local Rule 7.1(h)(3).

Petitioner asks the Court to hold the certificate of appealability ruling in abeyance

because prison officials did not mail his reply brief when he was transferred to another prison

on January 26, 2010. Respondent filed an answer to the petition on December 9, 2009.

Petitioner then had 45 days to file his reply in accordance with the Court’s responsive

pleading order. He did not do so. Any reply given to prison officials on January 26, 2010,

would have been untimely. More importantly, Petitioner was well aware of the statute of

limitations issue and had the opportunity to argue that issue given that he filed a motion for

equitable tolling at the time he instituted this action. Although the Court denied the motion

for equitable tolling without prejudice pending the State’s answer to the petition, the Court

considered Petitioner’s arguments in ruling on the timeliness of the petition.

Lastly, the Court notes that a district court “must issue or deny a certificate of

appealability when it enters a final order adverse to the applicant.” Rules Governing § 2254

Cases, Rule 11(a). The Court did so in this case. Petitioner has not sought reconsideration

of the Court’s dismissal order, submitted any opposition brief (even belatedly), nor shown

that the Court’s dismissal was erroneous. Accordingly, the Court DENIES Petitioner’s

motions to hold the certificate of appealability in abeyance and to proceed in forma pauperis
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on appeal. Given this determination, the Court also DENIES Petitioner’s motions to appoint

counsel and for production of documents. There are no further matters to be decided by this

Court. This case is closed.

IT IS SO ORDERED.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies To:

Phillip Herndon, #231404

G. Robert Cotton Correctional Facility

3510 N. Elm Road

Jackson, Michigan 49201-8877

Brian O. Neill, Esq.