Nichols v. Arkansas, State of

Filing 11

PROPOSED FINDINGS AND RECOMMENDATION recommending 1 Nichols' petition for writ of habeas corpus be dismissed without prejudice; and recommending the certificate of appealability be denied. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 03/07/2025. (llg)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

JOHNNY LEE NICHOLS

PETITIONER

No. 4:25-cv-00084 KGB/PSH
STATE OF ARKANSAS,
POPE COUNTY CIRCUIT COURT

RESPONDENT

PROPOSED FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following Recommendation has been sent to Chief United States District
Judge Kristine G. Baker. You may file written objections to all or part of this
Recommendation. If you do so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be received by the Clerk of this
Court within fourteen (14) days of this Recommendation. By not objecting, you may
waive the right to appeal questions of fact.
DISPOSITION
Petitioner Johnny Lee Nichols (“Nichols”), an inmate at the Pope County
Detention Center, filed a petition for writ of habeas corpus on January 30, 2025. The
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Court subsequently ordered Nichols to submit either the $5 filing fee or a properly
completed in forma pauperis application on or before March 5, 2025. Doc. No. 3.
Citing Local Rule 5.5, the Court informed Nichols that failure to comply with the
Court’s directions would result in the recommended dismissal of the case without
prejudice. The Court also advised Nichols of his obligation to promptly notify the
Clerk of any change in his address. Id.
Nichols has not responded to the Court’s Order. Additionally, that Order, as
well as other mail sent to Nichols by the Clerk, was returned as undeliverable with
a notation that Nichols was no longer at the Pope County Detention Center. See Doc.
Nos. 6-10. Nichols has not informed the Court of his new address. Under these
circumstances, the Court concludes that Nichols’ petition should be dismissed
without prejudice for failure to comply with Local Rule 5.5(c)(2) and failure to
respond to the Court’s Order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995)
(District courts have inherent power to dismiss sua sponte a case for failure to
prosecute, and exercise of that power is reviewed for abuse of discretion).
Therefore, the Court recommends that Nichols’ petition for writ of habeas
corpus be dismissed without prejudice for failure to comply with Local Rule
5.5(c)(2) and failure to respond to the Court’s Order.
Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section
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2554 Cases in the United States District Court, the Court must determine whether to
issue a certificate of appealability in the final order. In § 2254 cases, a certificate of
appealability may issue only if the applicant has made a substantial showing of the
denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). The Court finds no issue
on which petitioner has made a substantial showing of a denial of a constitutional
right. Thus, the Court recommends the certificate of appealability be denied.
IT IS SO ORDERED this 7th day of March, 2025.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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