HENDERSON v. UNKNOWN
Filing
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ORDER dismissing 1 Petition without prejudice; denying as moot 7 Motion for Leave to Proceed in forma pauperis; denying as moot 9 Motion to Appoint Counsel; denying as moot 11 Motion for Order to Show Cause. Ordered by US DISTRICT JUDGE HUGH LAWSON on 7/3/2018. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
KEITH HENDERSON,
:
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Petitioner,
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VS.
:
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UNKNOWN,
:
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Respondent.
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________________________________ :
NO. 7:18-CV-00018-HL-TQL
ORDER
Petitioner Keith Henderson, an inmate currently confined at the Early County Jail
Facility in Blakely, Georgia, filed a pro se pleading in this Court on February 2, 2018 that
was docketed as a petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2241
(ECF No. 1). Because the relief requested in Petitioner’s pleading was unclear, the United
States Magistrate Judge ordered Petitioner to recast his pleading on either a standard §
1983 form or a form habeas application. Petitioner was also directed to either submit the
appropriate filing fee or file a proper motion for leave to proceed in forma pauperis.
Petitioner was given twenty-one (21) days to comply with the Court’s Order and warned
that failure to comply with the Magistrate Judge’s order would result in dismissal of his
pleading. Order, Mar. 13, 2018, ECF No. 4.
Petitioner filed three documents after the Magistrate Judge entered the March 13th
Order, including a motion to proceed in forma pauperis, as directed. However, Petitioner
failed to recast his initial pleading on the Court’s standard form, as ordered, or otherwise
clarify the relief he seeks in this action. Accordingly, the Magistrate Judge ordered
Petitioner to respond and show cause why his lawsuit should not be dismissed for failure to
comply with the Court’s orders. Petitioner’s response was due within twenty-one (21)
days of the date of the Order and Petitioner was again advised that failure to respond would
result in dismissal of his pleading. Order, Apr. 30, 2018, ECF No. 8.
Petitioner again filed three sets of documents that the Court presumes are in
response to the Magistrate Judge’s April 10th Order: a motion for appointed counsel (ECF
No. 9), a document that is entitled “Notice of Administrative Appeal” (ECF No. 10), and a
“motion to show cause” (ECF No. 11). None of the documents filed by Petitioner
contains a recast pleading as ordered by the Magistrate Judge or offers any explanation as
to why Petitioner could not comply with the Magistrate Judge’s instructions. Petitioner’s
“Notice of Administrative Appeal” consists largely of hand-copied court rules from
Florida, and the relevance of those rules to this case is not at all apparent. See, e.g., Notice
of Administrative Appeal 3-6, ECF No. 10. Petitioner’s “motion to show cause” alludes
to possible claims pursuant to 42 U.S.C. § 1983, but the Court cannot determine from this
document whom Petitioner might wish to sue and on which potential causes of action. See
Douglas v. Yates, 535 F.3d 1316, 1321-22 (11th Cir. 2008) (dismissal of defendants
appropriate where plaintiff failed to allege facts associating defendants with a particular
constitutional violation). Petitioner’s motion for appointed counsel likewise contains no
information that would help the Court determine how Petitioner intends to proceed with his
claims, nor does it provide any reasons why counsel should be appointed in this case.
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Petitioner’s failure to fully and timely comply with the Court’s orders and
instructions is grounds for dismissal of his case. 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 case).
Petitioner’s petition shall therefore be
DISMISSED without prejudice and all pending motions (ECF Nos. 7, 9, 11) shall be
DENIED as moot. 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. at 478. Reasonable jurists could not find that a dismissal of the instant
action for Petitioner’s repeated failure to comply with the Court’s orders 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
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notice of appeal).
SO ORDERED, this 3rd day of July, 2018.
s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE
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