Hicks v. Smith

Filing 6

OPINION AND ORDER Summarily Dismissing without prejudice the 1 Petition for Writ of Habeas Corpus filed by Carlos Hicks and DECLINING to Issue a Certificate of Appealability Signed by District Judge Robert H. Cleland. (LWag) Modified on 4/10/2017 (LWag).

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CARLOS HICKS,
Petitioner,
v.

Case No. 17-10384

WILLIE SMITH,
Respondent.
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OPINION AND ORDER SUMMARILY DISMISSING WITHOUT PREJUDICE THE
PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY
Petitioner Carlos Hicks, presently confined at the Ionia Maximum Correctional
Facility in Ionia, Michigan, has filed a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. (Dkt. # 1.) Petitioner challenges his conviction for assault with intent to
commit murder, felon in possession of a firearm, and felony-firearm.
On February 8, 2017, 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. (Dkt. # 3.) On February 13, 2017, Magistrate Judge Whalen signed a second
“Order to Correct Deficiency,” in which Petitioner was ordered to submit two copies of
his habeas petition so the Clerk of the Court could serve Respondent and the Michigan
Attorney General’s Office. (Dkt. # 4.) Petitioner was given thirty days to comply with this
second order. Petitioner was also warned that failure to comply with either order could
result in dismissal of his action. To date, Petitioner has failed to comply with either
deficiency order. Accordingly, the court will dismiss the petition without prejudice.

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
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 F. App’x. 348, 349 (6th Cir. 2001) (citing McGore v. Wrigglesworth, 114
F. 3d 601, 605 (6th Cir. 1997)). Magistrate Judge Whalen’s first deficiency order clearly
stated that Petitioner was required to submit either the 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. (See Dkt. # 3.)
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 F. App’x. at 349.
The application is similarly flawed for failing to comply with the second deficiency
order. The habeas rules require the Clerk of the Court to serve a copy of the 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. Failure to do so justifies dismissal. See, e.g.,
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 Federal Rule
of Civil Procedure 41(b) for a habeas petitioner’s failure to prosecute or to comply with a
court order. See Adams v. Justice, 145 F. App’x. 889, 890 (5th Cir. 2005); Norlander v.
Plasky, 964 F. Supp. 39, 41 (D. Mass. 1997). Because Petitioner has failed to comply

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with two dismissal orders, the court will, sua sponte, 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.
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. 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 F. App’x.
734, 735-36 (10th Cir. 2008), the court will decline to issue a certificate of appealability.
IT IS ORDERED that the Petitioner’s February 8, 2017 “Petition for Writ of
Habeas Corpus” (Dkt. # 1) is DISMISSED WITHOUT PREJUDICE. Nothing in this order

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precludes Petitioner from submitting a new habeas petition with payment of the filing fee
or the in forma pauperis application.
The court DECLINES to issue a certificate of appealability.

s/Robert H. Cleland
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ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 10, 2017
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 10, 2017, by electronic and/or ordinary mail.

s/Lisa Wagner
Case Manager and Deputy Clerk
810-292-6522

S:\Cleland\JUDGE'S DESK\C1 ORDERS\17-10384.HICKS.summary.dismissal.TLH.docx

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