Johnson v. Brewer

Filing 4

OPINION and ORDER Summarily Dismissing 1 Petition for Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Sean F. Cox. (JMcC)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION RITA JOHNSON, Petitioner, Civil No. 2:17-CV-13229 HONORABLE SEAN F. COX UNITED STATES DISTRICT JUDGE v. SHAWN BREWER, Respondent, / OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY Rita Johnson, (“Petitioner”), confined at the Huron Valley Women’s Correctional Facility in Ypsilanti, Michigan, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 4, 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 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. I. Discussion Petitioner’s application is subject to dismissal, because she 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 filing fee and his or her failure 1 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)). 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 her action. Because petitioner failed to pay the filing fee or submit the required application to proceed in forma pauperis, her petition is subject to dismissal for want of prosecution. Gravitt, 14 F. App’x. 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. 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 2 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 her filing deficiencies would not be debatable amongst jurists of reason. See Soeken v. Estep, 270 F. App’x. 734, 735-36 (10th Cir. 2008). II. ORDER 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: January 12, 2018 s/Sean F. Cox Sean F. Cox U. S. District Judge I hereby certify that on January 12, 2018, the foregoing document was served on counsel of record via electronic means and upon Rita Johnson via First Class mail at the address below: Rita Johnson 930017 HURON VALLEY COMPLEX - WOMENS 3201 BEMIS ROAD YPSILANTI, MI 48197 s/J. McCoy Case Manager 3

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