Thomas v. Trieweiler

Filing 5

OPINION and ORDER Summarily Dismissing the 1 Petition for Writ of Habeas Corpus and Denying a Certificate of Appealability. Signed by District Judge Thomas L. Ludington. (KWin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ANDRE R. THOMAS,
Petitioner,

Case Number 1:18-cv-11325
Honorable Thomas L. Ludington
United States District Judge

v.
TONY TRIERWEILER,
Respondent,
/

OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
Petitioner Andre R. Thomas is presently confined at the Bellamy Creek Correctional
Facility in Ionia, Michigan. On April 27, 2018, Thomas filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. ECF No. 1. On May 2, 2018, Magistrate Judge R. Steven Whalen
signed an “Order to Correct Deficiency,” in which Petitioner was ordered to submit a $5.00 fee for
filing a habeas corpus petition or an application to proceed in forma pauperis within twenty one
days of the order. ECF No. 2. To date, the petitioner has failed to submit either the filing fee or an
application to proceed in forma pauperis. For the reasons stated below, the petition for writ of
habeas corpus is dismissed without prejudice because of the petitioner’s failure to comply with an
order of the Court.1
I.
If a prisoner who seeks habeas corpus relief does not comply with a district court’s
directions regarding the prisoner’s failure to pay the full filing fee and the failure to provide

1

Magistrate Judge Whalen separately signed an order for the petitioner to provide additional copies of the petition for
writ of habeas corpus for service upon the respondent. The petitioner has since provided service copies of the petition,
but did not submit the filing fee or the application to proceed in forma pauperis.

required documentation for in forma pauperis status, the district court must presume that the
prisoner is not a pauper, assess the full filing fee, and dismiss the case for want of prosecution. See
Gravitt v. Tyszkiewicz, 14 Fed. App’x. 348, 349 (6th Cir. 2001) (unpublished) (citing McGore v.
Wrigglesworth, 114 F. 3d 601, 605 (6th Cir. 1997)). The deficiency order stated that the petitioner
was required to submit either the $ 5.00 filing fee or an application to proceed in forma pauperis.
The deficiency order also expressly warned the petitioner that failure to comply with the order
could result in the dismissal of his action. Because Petitioner failed to comply with the deficiency
order, his petition is subject to dismissal for want of prosecution. Gravitt, 14 Fed. App’x. at 349.
The petition will be summarily dismissed without prejudice. Petitioner will also be denied
a certificate of appealability. In order to obtain a certificate of appealability, a prisoner must make
a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). When a district
court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying
constitutional claims, a certificate of appealability should issue, and an appeal of the district court’s
order may be taken, if the petitioner shows that jurists of reason would find it debatable whether
the petitioner 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 v.
McDaniel, 529 U.S. 473, 484 (2000). When a plain procedural bar is present and the district court
is correct 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 petition should be allowed to proceed
further. In such a circumstance, no appeal would be warranted. Id. See also Soeken v. Estep, 270
F. App’x. 734, 735-36 (10th Cir. 2008). Accordingly, Petitioner will be denied a certificate of
appealability.
II.

Accordingly, it is ORDERED that the petition for a writ of habeas corpus, ECF No. 1, is
DISMISSED without prejudice.
It is further ORDERED that a certificate of appealability is DENIED.
Nothing in this order precludes the petitioner from submitting a new habeas petition with
payment of the filing fee or the in forma pauperis application.

Dated: June 20, 2018

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on June 20, 2018.
s/Kelly Winslow
KELLY WINSLOW, Case Manager