Davenport v. Barrett

Filing 6

ORDER Dismissing 1 Petition for Writ of Habeas Corpus Without Prejudice and Declining to Issue a Certificate of Appealability. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GARY DAVENPORT,
Petitioner,

Case No. 16-cv-14442
Hon. Matthew F. Leitman

v.
JOSEPH BARRETT,
Respondent,
_________________________________/
ORDER DISMISSING PETITION FOR WRIT OF HABEAS
CORPUS (ECF #1) WITHOUT PREJUDICE AND DECLINING
TO ISSUE A CERTIFICATE OF APPEALABILITY
Petitioner Gary Davenport (“Davenport”) is confined at the Cotton Correctional
Facility in Jackson, Michigan. On December 21, 2016, Davenport filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for first-degree
criminal sexual conduct (the “Petition”). (See ECF #1.)
On January 3, 2017, Magistrate Judge R. Steven Whalen signed an “Order to
Correct Deficiency,” in which the Court ordered Davenport to submit two copies of the
Petition in order for the Clerk of the Court to effect service upon the Respondent and the
Michigan Attorney General’s Office (the “Deficiency Order”). (See ECF #4.)

The

Deficiency Order provided Davenport thirty days to comply with the order. (See id.) The
Deficiency Order also expressly warned Davenport that his failure to comply with the order
could result in dismissal of his action. (See id.) To date, Davenport has failed to submit
the copies of the Petition as the Deficiency Order required. For the reasons stated below,

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Davenport’s action is dismissed without prejudice because of his failure to comply with
the Deficiency Order.
I
The rules governing habeas actions require the Clerk of the Court to serve a copy of
a habeas petition and a copy of any order requiring responsive pleadings on the respondent
and on the Attorney General for the State of Michigan by first class mail as provided in
Rule 4 of the Rules Governing § 2254 Cases, Rule 4. See Coffee v. Harry, 2005 WL
1861943, *2 (E.D. Mich. Aug. 2, 2005). It is Davenport’s responsibility to provide these
copies to the Court of the Clerk in order to effectuate service and Davenport’s failure to
include these copies of the Petition in his initial application rendered the habeas application
deficient. See Moore v. Hawley, 7 F.Supp.2d 901, 903 (E.D. Mich. 1998).
A district court may sua sponte dismiss a habeas action pursuant to Fed. R. Civ. P.
41(b) for failure to prosecute or to comply with any court order. See Adams v. Justice, 145
Fed. App’x 889, 890 (5th Cir. 2005); Norlander v. Plasky, 964 F. Supp. 39, 41 (D. Mass.
1997). Because Davenport failed to comply with the Deficiency Order by submitting the
required copies of the Petition, the Petition is subject to dismissal for want of prosecution.
See Gravitt v. Tyszkiewicz, 14 Fed. App’x 348, 349 (6th Cir. 2001) (affirming dismissal of
habeas petition for want of prosecution after petitioner failed to comply with district court’s
deficiency order).
As a result of Davenport’s failure to comply with the Deficiency Order, the Court
will dismiss the Petition without prejudice. The Court also declines to issue Davenport a
certificate of appealability. In order to obtain a certificate of appealability, a prisoner must

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make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2).
To demonstrate such a denial, an applicant is required to show that reasonable jurists could
debate whether the petition should have been resolved in a different manner, or that the
issues presented were adequate to deserve encouragement to proceed further. See Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). Here, jurists of reason would not debate the
Court’s conclusion that Davenport has not met the standard for a certificate of
appealability.
II
For the reasons stated above, IT IS HEREBY ORDERED that the Petition (ECF
#1) is DISMISSED WITHOUT PREJUDICE.

Nothing in this Order precludes

Davenport from submitting a new habeas petition with payment of the filing fee or the in
forma pauperis application that complies with the local rules and requirements of this
Court.
IT IS SO ORDERED.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: February 28, 2017

I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on February 28, 2017, by electronic means and/or ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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