Foxx v. State of Missouri - County Prosecutor
MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that this case is DISMISSED without prejudice. A separate order of dismissal will be entered herewith. IT IS FURTHER ORDERED that petitioner's motion to appoint counsel (Docket No. 3 ) is DENIED as moot. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge E. Richard Webber on 12/27/17. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
FREDERICK JAMES FOXX,
STATE OF MISSOURI – COUNTY
MEMORANDUM AND ORDER
This matter is before the Court upon its own motion. On May 8, 2017, petitioner
Frederick James Foxx filed a petition in this Court pursuant to 28 U.S.C. § 2241. He sought and
was granted leave to proceed in forma pauperis. In his petition, he stated he was challenging a
2014 sentence. However, he stated he was no longer in custody, and review of materials he
attached as supplements to the petition revealed that the Missouri Board of Probation and Parole
discharged petitioner from supervision in September of 2016. In an order dated November 16,
2017, the Court noted that petitioner was not “in custody” as required to seek relief pursuant to
28 U.S.C. § 2241, and directed petitioner to show cause why his petition should not be dismissed
for lack of subject matter jurisdiction. In so doing, the Court specifically cautioned petitioner
that his failure to timely respond would result in the dismissal of his petition.
Petitioner’s response was due to the Court on December 16, 2017. To date, he has
neither responded to the Court’s order, nor sought additional time to do so. After careful
consideration, the Court concludes that it lacks subject matter jurisdiction over the petition, and
will summarily dismiss it.
The Court has considered whether to issue a certificate of appealability. To do so, the
Court must find a substantial showing of the denial of a federal constitutional right.
Tiedeman v. Benson, 122 F.3d 518, 522 (8th Cir. 1997). A substantial showing is a showing that
issues are debatable among reasonable jurists, a Court could resolve the issues differently, or the
issues deserve further proceedings. Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997) (citing
Flieger v. Delo, 16 F.3d 878, 882–83 (8th Cir. 1994)). Because petitioner has made no such
showing, the Court will not issue a certificate of appealability.
IT IS HEREBY ORDERED that this case is DISMISSED without prejudice.
separate order of dismissal will be entered herewith.
IT IS FURTHER ORDERED that petitioner’s motion to appoint counsel (Docket No.
3) is DENIED as moot.
IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability.
Dated this 27th day of December, 2017.
E. RICHARD WEBBER
UNITED STATES DISTRICT JUDGE
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