Finley v. McCullick

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

DEMARCUS FINLEY, 2:17-cv-11976-TGB

Petitioner, OPINION AND ORDER v. DENYING MOTION FOR RECONSIDERATION (ECF MARK MCCULLICK, NOS. 38, 45) Respondent. On January 25, 2021, the Court denied Petitioner Finley’s application for a writ of habeas corpus. The Court also declined to issue a certificate of appealability, but granted leave to appeal in forma pauperis. Finley has now filed a Notice of Appeal. ECF No. 42. Petitioner has also filed a motion for reconsideration and a supplement to the motion for reconsideration. ECF Nos. 38, 45. This Court lacks jurisdiction to consider Petitioner’s motion for reconsideration because he has filed a notice of appeal in this case. A notice of appeal generally “confers jurisdiction on the court of appeals and divests the district court of control over those aspects of the case involved in the appeal.” Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (citing Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)); see also Workman v. Tate, 958 F.2d 164, 167 (6th Cir. 1992). Because Petitioner has filed a notice of

appeal, this Court lacks jurisdiction to amend its original opinion and order to consider the merits of his case. Workman, 958 F.2d at 167-68; see

also Raum v. Norwood, 93 F. App’x 693, 695 (6th Cir. 2004) (Plaintiffs deprived district court of jurisdiction over their motion for reconsideration by filing notice of appeal before district court had chance

to make decision on motion to reconsider). Based upon the foregoing, the motion for reconsideration and the supplement to the motion, ECF Nos. 38, 45, are DENIED.

IT IS SO ORDERED.

Dated: May 13, 2021 s/Terrence G. Berg TERRENCE G. BERG UNITED STATES DISTRICT JUDGE