UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHAWN C. WEM,

Petitioner,

v.

SHERRY BURT,

Respondent. 

/

Case Number: 5:09-CV-13754

HONORABLE JOHN CORBETT O’MEARA

ORDER CONSTRUING PETITIONER’S REQUEST FOR CERTIFICATE 

OF APPEALABILITY AS MOTION FOR RECONSIDERATION

AND DENYING MOTION, GRANTING REQUEST TO PROCEED IN FORMA

PAUPERIS, AND DENYING MOTION FOR APPOINTMENT OF COUNSEL

Petitioner Shawn C. Wem filed a pro se petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2254, challenging the revocation of his parole. On March 3,

2011, the Court issued an “Opinion and Order of Dismissal Without Prejudice.” The

Court also denied a certificate of appealability. Petitioner has filed a pleading titled

“Request for Certificate of Appealability.” Because the Court already has denied a

certificate of appealability (COA), the Court construes the pleading as requesting

reconsideration of that denial. Petitioner also has filed a Request to Proceed In Forma

Pauperis on Appeal and a Motion for Appointment of Counsel. 

Motions for reconsideration may be granted when the moving party shows (1) a

“palpable defect,” (2) by which the court and the parties were misled, and (3) the

correction of which will result in a different disposition of the case. E.D. Mich. L.R.

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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. L.R. 7.1(h)(3); see also, Meekison v. Ohio Dept. of

Rehabilitation and Correction, 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 also has filed a Request to Proceed In Forma Pauperis on Appeal. 

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. 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, * 3 (N.D. Ill. Jan.

4, 2002). “[T]o determine that an appeal is in good faith, a court need only find that a

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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.” 

Additionally, Petitioner requests counsel to represent him on appeal. There exists

no constitutional right to the appointment of counsel in civil cases, and the court has

broad discretion in determining whether counsel should be appointed. Childs v.

Pellegrin, 822 F.2d 1382, 1384 (6th Cir. 1987) (“[A]ppointment of counsel in a civil case

is . . . a matter within the discretion of the court. It is a privilege and not a right.”)

(internal quotation omitted). A habeas petitioner may obtain representation at any stage

of the case “[w]henever the United States magistrate or the court determines that the

interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B). The interests of justice do

not require appointment of counsel at this time and the motion will be denied. 

Accordingly, IT IS ORDERED that Petitioner’s “Request for Certificate of

Appealability” [dkt. # 12 ] is construed as a “Motion for Reconsideration” and the

“Motion for Reconsideration” and Petitioner’s “Motion for Appointment of Counsel”

[dkt. #13] are DENIED. 

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IT IS FURTHER ORDERED that Petitioner’s Request to Proceed In Forma

Pauperis [dkt. #11] is GRANTED. 

s/John Corbett O’Meara 

United States District Judge

Date: September 15, 2011

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

of record on this date, September 15, 2011, using the ECF system and/or ordinary mail.

s/William Barkholz 

Case Manager

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