Brack v. Patel
Filing
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OPINION and ORDER Summarily Dismissing the Petition for a Writ of Habeas Corpus and Declining to Issue a Certificate of Appealability. Signed by District Judge Mark A. Goldsmith. (Sandusky, K)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MAXWELL LOMAX BRACK,
Petitioner,
Civil No. 2:20-CV-11126
HON. MARK A. GOLDSMITH
v.
SONAL PATEL,
Respondent.
_________________________________/
OPINION AND ORDER SUMMARILY DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS AND DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY
Maxwell Lomax Brack, (“Petitioner”), presently confined at the Woodland Center
Correctional Facility in Whitmore Lake, Michigan, filed a pro se application for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. On May 13, 2020, 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 twentyone days of the order. Petitioner’s action is dismissed without prejudice, because Petitioner failed
to comply with an order of the court.
Petitioner 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 or 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
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for want of prosecution if the fee is not paid. 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 his action. 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; see also Bischoff v.
Genesis House, No. 06-cv-10231, 2006 WL 752755, *1 (E.D. Mich. Mar. 21, 2006).
The petition for a writ of habeas corpus is summarily dismissed without prejudice. The
Court denies a certificate of appealability. 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.
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The Court denies a certificate of appealability; the dismissal of the petition based on
Petitioner’s failure to cure his filing deficiency is not debatable amongst jurists of reason. See
Soeken v. Estep, 270 F. App’x 734, 735-36 (10th Cir. 2008).
The Petition for a Writ of Habeas Corpus (Dkt. 1) 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. A certificate of appealability is denied.
SO ORDERED
Dated: November 5, 2020
Detroit, Michigan
s/Mark A. Goldsmith
MARK A. GOLDSMITH
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served upon counsel of record and any
unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail
addresses disclosed on the Notice of Electronic Filing on November 5, 2020.
s/Karri Sandusky
Case Manager
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