Favors v. Stewart
Filing
9
OPINION AND ORDER DISMISSING 1 PETITION FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by District Judge Stephen J. Murphy, III. (DPar)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KELLEY FAVORS,
Petitioner,
Case No. 2:14-14364
v.
HONORABLE STEPHEN J. MURPHY, III
ANTHONY STEWART,
Respondent.
/
OPINION AND ORDER DISMISSING THE PETITION
FOR A WRIT OF HABEAS CORPUS, DENYING A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
The case sounds in habeas corpus brought pursuant to 28 U.S.C. § 2254. Michigan
parolee Kelley Favors was convicted of aggravated stalking, Mich. Comp. Laws § 750.411i,
pursuant to a plea in the Macomb County Circuit Court in 2011. He was initially sentenced
to a probationary term, but after violating the conditions of his probation, he was sentenced
as a second habitual offender to 17 months to five years imprisonment in 2013. Mich.
Comp. Laws § 769.10. Favors instituted the present habeas action in November 2014. In
his pro se pleadings, Favors raises claims concerning the validity of his plea, a change in
his probationary sentence from two years to five years to comport with state law, and the
effectiveness of trial counsel. Respondent has filed an answer to the petition and informs
the Court that Favors is on parole and contends that his claims are procedurally defaulted
and/or lack merit. See Resp., ECF No. 6. For the reasons below, the Court will dismiss the
petition without prejudice. The Court also concludes that a certificate of appealability and
leave to proceed in forma pauperis on appeal must be denied.
DISCUSSION
Local Rule 11.2 authorizes the Court to dismiss a case based upon a party's failure
to keep the Court apprised of address changes and updated contact information. The rule
states:
Every attorney and every party not represented by an attorney must include his
or her contact information consisting of his or her address, e-mail address, and
telephone number on the first paper that person files in a case. If there is a
change in the contact information, that person promptly must file and serve a
notice with the new contact information. The failure to file promptly current
contact information may subject that person or party to appropriate sanctions,
which may include dismissal, default judgment, and costs.
L.R. 11.2. Pro se litigants have the same obligation as an attorney to notify the court of a
change of address. Carey v. King, 856 F.2d 1439, 1441 (9th Cir.1988). "'[Petitioner] has
the duty to inform the court of any address changes,' and it is not incumbent upon this
Court or its staff to keep track of Petitioner's current address." Thompkins v. Metrish, No.
2:07-CV-12, 2009 WL 2595604, at *1 n.1 (W.D. Mich. Aug. 20, 2009) (quoting Kelly v. WalMart, Inc., No. 7:07-CV-0089, 2007 WL 2847068, at *1 (N.D.N.Y. Sept. 26, 2007)).
Additionally, Civil Rule 41(b) authorizes a federal court to dismiss a case if "the
plaintiff fails to prosecute or to comply with these rules or a court order," Fed. R. Civ. P.
41(b), and Local Rule 41.2 authorizes the Court to dismiss a case "when it appears that .
. . the parties have taken no action for a reasonable time." L.R. 41.2. The Court may
therefore dismiss a civil action for failure to prosecute. See Mulbah v. Detroit Bd. of Educ.,
261 F.3d 586, 589 (6th Cir. 2001) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)).
Shortly after Favors filed his habeas petition in November 2014, the Court sent him
a notice advising him of Local Rule 11.2 and his duty to inform the Court of any change of
address. See Not., ECF No. 2. The notice stated that the failure to provide updated contact
2
information could result in dismissal of his case. Id.; see also Watsy v. Richards, No. 861856, 1987 WL 37151 (6th Cir. April 20, 1987) (affirming a district court's dismissal under
similar circumstances). The record indicates that Favors has been released on parole and
has not communicated with the Court since he filed his habeas petition nearly two years
ago. Because Favors has failed to provide the Court with his current address and updated
contact information as required by Local Rule 11.2 and the Court's notice, the Court will
dismiss the case without prejudice for want of prosecution.
Before Favors may appeal the Court's decision, a certificate of appealability must
issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A federal district court must issue
or deny a certificate of appealability when denying relief. Rule 11(a) of the Rules Governing
2254 Cases, 28 U.S.C. foll. § 2254. A certificate of appealability may issue "only if the
applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.
§ 2253(c)(2). When a federal court denies relief on procedural grounds without addressing
the merits of a habeas petition, a certificate of appealability should issue if it is shown 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, 484–85
(2000).
Having considered the matter, the Court concludes that reasonable jurists could not
debate the correctness of the Court's procedural ruling. A certificate of appealability is
therefore unwarranted.
Lastly, the Court concludes that Favors should not be allowed to proceed in forma
pauperis on appeal as an appeal cannot be taken in good faith. See Fed. R. App. P. 24(a).
3
ORDER
WHEREFORE it is hereby ORDERED that the petition for a writ of habeas corpus is
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that a certificate of appealability and leave to proceed
in forma pauperis on appeal are DENIED.
s/Stephen J. Murphy, III
STEPHEN J. MURPHY, III
United States District Judge
Dated: November 22, 2016
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on November 22, 2016, by electronic and/or ordinary mail.
s/David P. Parker
Acting Case Manager
4
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?