Hurtado-Garcia v. Rivard
Filing
5
OPINION and ORDER summarily dismissing the 1 Petition for Writ of Habeas Corpus and Declining to issue a Certificate of Appealability. Signed by District Judge George Caram Steeh (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SOCORRO HURTADO-GARCIA,
Petitioner,
Civil No. 2:13-CV-11383
HONORABLE GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
v.
STEVE RIVARD,
Respondent,
/
OPINION AND ORDER SUMMARILY DISMISSING THE
PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
Socorro Hurtado-Garcia, (“Petitioner”), confined at the St. Louis Correctional
Facility in St. Louis, Michigan, filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 with this Court on or about March 28, 2013. On April 1, 2013, 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. For the reasons
stated below, petitioner’s action is dismissed without prejudice because of petitioner’s
failure to comply with an order of the court.
Petitioner’s application is subject to dismissal, because he failed to comply with
the order of deficiency by either submitting the $ 5.00 filing fee or an application to
proceed in forma pauperis.
If a prisoner who seeks habeas corpus relief does not comply with a district
court’s directions in a deficiency order, regarding the prisoner’s failure to pay the full
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filing fee and his failure to provide the required documentation to apply to proceed in
forma pauperis, 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. Appx. 348, 349 (6th Cir. 2001)(citing McGore v. Wrigglesworth,
114 F. 3d 601, 605 (6th Cir. 1997)). The deficiency order clearly stated that 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 petitioner that failure to comply
with the order could result in the dismissal of his action. Because petitioner failed to pay
the filing fee or submit the required application to proceed in forma pauperis, his petition
is subject to dismissal for want of prosecution. Gravitt, 14 Fed. Appx. at 349.
The Court will summarily dismiss the petition for writ of habeas corpus without
prejudice. The Court will also deny a certificate of appealability to petitioner. 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.
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In such a circumstance, no appeal would be warranted. Id. The district court must
issue or deny a certificate of appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C. foll. § 2254.
The Court will deny petitioner a certificate of appealability, because the dismissal
of the petition based on petitioner’s failure to cure his filing deficiencies would not be
debatable amongst jurists of reason. See Soeken v. Estep, 270 Fed. Appx. 734, 735-36
(10th Cir. 2008).
Based upon the foregoing, IT IS HEREBY ORDERED that the Petition for Writ of
Habeas Corpus is DISMISSED WITHOUT PREJUDICE. Nothing in this order
precludes petitioner from submitting a new habeas petition with payment of the filing fee
or the in forma pauperis application.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
SO ORDERED.
Dated: May 6, 2013
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
May 6, 2013, by electronic and/or ordinary mail and also on
Socorro Hurtado-Garcia #802791, St. Louis Correctional
Facility, 8585 N. Croswell Road, St. Louis, MI 48880.
s/Barbara Radke
Deputy Clerk
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