McClendon v. United States of America

Filing 7

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS without prejudice McClendon's 1 Motion to Vacate/Set Aside/Correct Sentence (2255), and DIRECT the Clerk to CLOSE this case and enter the appropriate judgment of dismis sal. It is further RECOMMENDED that the Court DENY McClendon leave to proceed in forma pauperis on appeal and a Certificate of Appealability. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written obje ctions within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 3/29/2018). ORDER directing service of the REPORT AND RECOMMENDAITON of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 3/15/2018. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

AARON MCCLENDON,
Movant,

CIVIL ACTION NO.: 2:17-cv-136

v.
UNITED STATES OF AMERICA,

(Case No.: 2:16-cr-12)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
This matter comes before the Court upon Movant Aaron McClendon’s (“McClendon”)
failure to comply with the Court’s Order of February 8, 2018, (doc. 6), and his failure to
prosecute this action. For the following reasons, I RECOMMEND that the Court DISMISS
without prejudice McClendon’s 28 U.S.C. § 2255 Motion for failure to follow the Court’s
directive and failure to prosecute. 1 I further RECOMMEND that the Court DENY McClendon
leave to appeal in forma pauperis and a Certificate of Appealability.

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A “district court can only dismiss an action on its own motion as long as the procedure employed is fair.
. . . To employ fair procedure, a district court must generally provide the plaintiff with notice of its intent
to dismiss or an opportunity to respond.” Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336 (11th Cir. 2011)
(citations and internal quotation marks omitted). A Magistrate Judge’s Report and Recommendation
(“R&R”) provides such notice and opportunity to respond. See Shivers v. Int’l Bhd. of Elec. Workers
Local Union, 349, 262 F. App’x 121, 125, 127 (11th Cir. 2008) (indicating that a party has notice of a
district court’s intent to sua sponte grant summary judgment where a magistrate judge issues a report
recommending the sua sponte granting of summary judgment); Anderson v. Dunbar Armored, Inc., 678
F. Supp. 2d 1280, 1296 (N.D. Ga. 2009) (noting that R&R served as notice that claims would be sua
sponte dismissed). This R&R constitutes fair notice to McClendon that his suit is due to be dismissed.
As indicated below, McClendon will have the opportunity to present his objections to this finding, and the
presiding district judge will review de novo properly submitted objections. See 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72; see also Glover v. Williams, No. 1:12-CV-3562-TWT-JFK, 2012 WL 5930633, at *1
(N.D. Ga. Oct. 18, 2012) (explaining that magistrate judge’s report and recommendation constituted
adequate notice and petitioner’s opportunity to file objections provided a reasonable opportunity to
respond).

BACKGROUND
On November 13, 2017, McClendon filed a Motion to Vacate, Set Aside, or Correct his
Sentence, pursuant to 28 U.S.C. § 2255, while housed at the Federal Correctional InstitutionButner Low in Butner, North Carolina. (Doc. 1.) This Court directed Respondent to respond to
McClendon’s Motion. (Doc. 3.) Respondent filed a Response to this Court’s Show Cause Order
on December 15, 2017. (Doc. 5.) On February 8, 2018, the Court issued an Order directing
McClendon to file a Reply to Respondent’s Response within twenty-one (21) days of the Court’s
Order. (Doc. 6.) The Court specifically advised McClendon that, if he failed to timely respond
or failed to address all of the Government’s arguments, the Court would presume that he does
not oppose the Government’s arguments and would dismiss his case for failure to prosecute and
for failure to abide by this Court’s Order. (Id. at p. 2.) Despite this warning, McClendon has
entirely failed to respond to this Court’s Order or the Government’s Response.

Indeed,

McClendon has not taken any action in this case since he filed his Section 2255 Motion on
November 13, 2017.
DISCUSSION
The Court must now determine how to address McClendon’s failure to comply with this
Court’s Order, his failure to respond to Respondent’s Response, and his failure to prosecute this
action. For the reasons set forth below, I RECOMMEND that the Court DISMISS without
prejudice McClendon’s Motion and DENY him leave to appeal in forma pauperis and a
Certificate of Appealability.
I.

Dismissal for Failure to Prosecute and Follow this Court’s Orders
A district court may dismiss a petitioner’s claims for failure to prosecute pursuant to

Federal Rule of Civil Procedure 41(b) (“Rule 41(b)”) and the court’s inherent authority to

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manage its docket. 2 Link v. Wabash R.R. Co., 370 U.S. 626 (1962); 3 Coleman v. St. Lucie Cty.
Jail, 433 F. App’x 716, 718 (11th Cir. 2011) (citing Fed. R. Civ. P. 41(b) and Betty K Agencies,
Ltd. v. M/V MONADA, 432 F.3d 1333, 1337 (11th Cir. 2005)). In particular, Rule 41(b) allows
for the involuntary dismissal of a petitioner’s claims where he has failed to prosecute those
claims, comply with the Federal Rules of Civil Procedure or local rules, or follow a court order.
Fed. R. Civ. P. 41(b); see also Coleman, 433 F. App’x at 718; Sanders v. Barrett, No. 05-12660,
2005 WL 2640979, at *1 (11th Cir. Oct. 17, 2005) (citing Kilgo v. Ricks, 983 F.2d 189, 192
(11th Cir. 1993)); cf. Local R. 41.1(b) (“[T]he assigned Judge may, after notice to counsel of
record, sua sponte . . . dismiss any action for want of prosecution, with or without
prejudice[,] . . . [based on] willful disobedience or neglect of any order of the Court.” (emphasis
omitted)). Additionally, a district court’s “power to dismiss is an inherent aspect of its authority
to enforce its orders and ensure prompt disposition of lawsuits.” Brown v. Tallahassee Police
Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (quoting Jones v. Graham, 709 F.2d 1457, 1458
(11th Cir. 1983)).
It is true that dismissal with prejudice for failure to prosecute is a “sanction . . . to be
utilized only in extreme situations” and requires that a court “(1) conclud[e] a clear record of
delay or willful contempt exists; and (2) mak[e] an implicit or explicit finding that lesser
sanctions would not suffice.” Thomas v. Montgomery Cty. Bd. of Educ., 170 F. App’x 623,
625–26 (11th Cir. 2006) (quoting Morewitz v. West of Eng. Ship Owners Mut. Prot. & Indem.
Ass’n (Lux.), 62 F.3d 1356, 1366 (11th Cir. 1995)); see also Taylor v. Spaziano, 251 F. App’x
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Pursuant to Rule 12 of the Section 2255 Rules, the Federal Rules of Civil Procedure may apply to a
Section 2255 motion, to the extent the Civil Rules are not inconsistent with the Section 2255 Rules.

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In Wabash, the Court held that a trial court may dismiss an action for failure to prosecute “even without
affording notice of its intention to do so.” 370 U.S. at 633. Nonetheless, in the case at hand, the Court
advised McClendon that his failure to respond to the Court’s Order and Respondent’s Response would
result in dismissal of this action. (Doc. 6.)
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616, 619 (11th Cir. 2007) (citing Morewitz, 62 F.3d at 1366). By contrast, dismissal without
prejudice for failure to prosecute is not an adjudication on the merits, and, therefore, courts are
afforded greater discretion in dismissing claims in this manner. Taylor, 251 F. App’x at 619;
see also Coleman, 433 F. App’x at 719; Brown, 205 F. App’x at 802–03.
While the Court exercises its discretion to dismiss cases with caution, dismissal of this
action without prejudice is warranted. See Coleman, 433 F. App’x at 719 (upholding dismissal
without prejudice for failure to prosecute, where plaintiff did not respond to court order to supply
defendant’s current address for purpose of service); Brown, 205 F. App’x at 802–03 (upholding
dismissal without prejudice for failure to prosecute, where plaintiff failed to follow court order to
file amended complaint and court had informed plaintiff that noncompliance could lead to
dismissal).
Despite having been advised of his obligation to respond to the Government’s Response
and this Court’s Order and the consequences for failing to respond, McClendon has not filed any
opposition or otherwise responded to this Court’s Order. Additionally, with McClendon not
having taken any action in this case since November 13, 2017, he has failed to diligently
prosecute his claims.
Thus, the Court should DISMISS without prejudice McClendon’s Section 2255
Motion, (doc. 1), for failure to follow this Court’s directives and for failure to prosecute.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny McClendon leave to appeal in forma pauperis and a

Certificate of Appealability. Though McClendon has, of course, not yet filed a notice of appeal,
it is proper to address these issues in the Court’s order of dismissal. Pursuant to Rule 11 of the
Rules Governing Section 2255 Cases, “the district court must issue or deny a certificate of

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appealability when it issues a final order adverse to the applicant.” (Emphasis supplied); see also
Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. County of Volusia, 189 F.R.D. 687,
691 (M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a
frivolous claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim
or argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct

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to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of McClendon’s failure to follow this Court’s Orders and
failure to prosecute and applying the Certificate of Appealability standards set forth above, there
are no discernable issues worthy of a certificate of appeal; therefore, the Court should DENY the
issuance of a Certificate of Appealability. If the Court adopts this recommendation and denies
McClendon a Certificate of Appealability, McClendon is advised that he “may not appeal the
denial but may seek a certificate from the court of appeals under Federal Rule of Appellate
Procedure 22.” Rule 11(a), Rules Governing Section 2255 Cases in the United States District
Courts. Furthermore, as there are no non-frivolous issues to raise on appeal, an appeal would not
be taken in good faith. Thus, the Court should likewise DENY McClendon in forma pauperis
status on appeal.
CONCLUSION
For the above-stated reasons, I RECOMMEND the Court DISMISS without prejudice
McClendon’s Motion to Vacate, Set Aside, or Correct his Sentence, filed pursuant to 28 U.S.C.
§ 2255, and DIRECT the Clerk of Court to CLOSE this case and to enter the appropriate
judgment of dismissal. I further RECOMMEND the Court DENY McClendon leave to proceed
in forma pauperis on appeal and a Certificate of Appealability.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and

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Recommendation is entered. Any objections asserting that the undersigned failed to address any
contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions herein.

See 28 U.S.C.

§ 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be served
upon all other parties to the action.

Upon receipt of objections meeting the specificity

requirement set out above, a United States District Judge will make a de novo determination of
those portions of the report, proposed findings, or recommendation to which objection is made
and may accept, reject, or modify, in whole or in part, the findings or recommendations made
herein. Objections not meeting the specificity requirement set out above will not be considered
by the District Judge. The Court DIRECTS the Clerk of Court to serve a copy of this Report
and Recommendation upon McClendon and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 15th day of March,
2018.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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