McNeal v. Jackson
Filing
4
OPINION and ORDER Dismissing 1 Petition for Writ of Habeas Corpus, and Denying 2 Application to Proceed Without Prepaying Fees or Costs - Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIMARLO DONELL MCNEAL, #418323,
Petitioner,
CASE NO. 2:17-CV-13437
HONORABLE PAUL D. BORMAN
v.
SHANE JACKSON
Respondent.
____________________________________/
OPINION AND ORDER DENYING THE APPLICATION TO PROCEED
IN FORMA PAUPERIS, DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS, AND DENYING A CERTIFICATE OF APPEALABILITY
Michigan prisoner Kimarlo Donell McNeal (Petitioner”) has submitted a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application to
proceed in forma pauperis. Petitioner’s certificate of prisoner institutional/trust fund
account activity states that he had a current spendable account balance of $289.47 in his
prison account as of September 13, 2017 when an administrative officer of the Michigan
Department of Corrections certified his financial statement. The Court concludes from
the financial data that Petitioner has not established indigence and that he can pay the
$5.00 filing fee for this action. Accordingly, the Court DENIES Petitioner’s application
to proceed in forma pauperis and DISMISSES WITHOUT PREJUDICE his petition
for a writ of habeas corpus. The Court is required to dismiss the case because the
allegation of poverty is untrue. See 28 U.S.C. § 1915(e)(2)(A). Petitioner may submit a
new habeas petition with payment of the filing fee in a new case. This case will not be
reopened.
Before Petitioner may appeal the Court’s decision, a certificate of appealability
must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). 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 court denies relief on
the merits, the substantial showing threshold is met if the petitioner demonstrates that
reasonable jurists would find the court's assessment of the constitutional claim debatable
or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief
on procedural grounds without addressing the merits, 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 court was correct in its procedural ruling. Id. Jurists of
reason would not find the Court’s procedural ruling debatable. Accordingly, the Court
DENIES a certificate of appealability. This case is closed.
IT IS SO ORDERED.
s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: October 26, 2017
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CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each
attorney or party of record herein by electronic means or first class U.S. mail on October 26,
2017.
s/Deborah Tofil
Case Manager
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