CONE v. MORALES
ORDER Dismissing the Petition without prejudice. A Certificate of Appealability is DENIED. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/18/2017. (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
TURQUELL S. CONE,
Petitioner Turquell S. Cone, a prisoner most recently confined at the Macon
Transitional Center in Macon, Georgia, has filed a petition seeking federal habeas relief
under 28 U.S.C. § 2254. In an Order dated March 28, 2017, the Court observed that
Petitioner appeared to be challenging his state pretrial detention and directed Petitioner to
recast his petition on the appropriate form and either pay the $5.00 filing fee or file a
renewed motion for leave to proceed in forma pauperis. Petitioner was given twenty-one
(21) days to comply with the Court’s Order. ECF No. 4 at 1-2.
The time for compliance passed with no response from Petitioner. Thus, in an
order dated May 23, 2017, the Magistrate Judge ordered Petitioner to respond and show
cause as to why his petition should not be dismissed. Petitioner was given twenty-one
(21) days to comply with this order, and he was again warned that if he failed to respond,
his petition would be dismissed for failure to comply. ECF No. 5 at 1.
The time for responding to the Show Cause Order has passed, and Petitioner has
again failed to respond, presumably because the order was returned to the Court as
undeliverable (ECF No. 6). Petitioner’s failure to fully and timely comply with the
Court’s orders and instructions and his failure to keep the Court apprised of his current
address leads the Court to believe that he is no longer interested in pursuing this case.
Thus, because of Petitioner’s failure to comply with the Court’s instructions and orders and
otherwise diligently prosecute this action, his Petition shall be DISMISSED without
prejudice. See Fed. R. Civ. P. 41; see also Slack v. McDaniel, 529 U.S. 473, 489 (2000)
(noting that the failure to comply with a court order is grounds for dismissal in a habeas
Petitioner also has no absolute entitlement to appeal this dismissal. Before he may
appeal, the district court must first issue a certificate of appealability (“COA”). See 28
U.S.C. § 2253(c)(1); 28 U.S.C. § 2254, Rule 11(a); see also Reedman v. Thomas, 305 F.
App’x 544, 545 (11th Cir. 2008) (per curiam) (granting COA on issue of whether habeas
petition was properly dismissed for failure to comply with court order). When, as here,
“the district court denies a habeas petition on procedural grounds without reaching the
prisoner's underlying constitutional claim,” a COA will not be issued unless the prisoner
can show, at least, “that jurists of reason would find it debatable whether the petition states
a valid claim of the denial of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S.
Reasonable jurists could not find that a dismissal of the instant action for
Petitioner’s repeated failure to comply with the Court’s orders and his failure to diligently
prosecute his case was debatable or wrong. See Knox v. Morgan, 457 F. App’x 777, 779
(10th Cir. 2012) (denying COA where district court dismissed habeas petition without
prejudice for failing to comply with court orders). Petitioner is accordingly DENIED a
COA. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (per curiam)
(approving denial of COA before movant filed a notice of appeal).
SO ORDERED, this 18th day of August, 2017.
S/ C. Ashley Royal
C. ASHLEY ROYAL, SENIOR JUDGE
UNITED STATES DISTRICT COURT
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?