Cole v. United States of America
Filing
10
ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 5/23/19. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ROBERT L. COLE,
Petitioner,
v.
No. 1:16-cv-01207-JDB-jay
UNITED STATES OF AMERICA,
Respondent.
ORDER DISMISSING PETITION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, Robert L. Cole, filed a pro se motion to vacate, set aside, or correct his sentence
(the “Petition”), pursuant to 28 U.S.C. § 2255. (Docket Entry (“D.E.”) 1.) By order dated April
17, 2019, the Court directed Cole to show cause within twenty-eight days why the case should not
be dismissed for lack of prosecution. (D.E. 8.) Although warned that failure to comply with the
order would result in dismissal under Federal Rule of Civil Procedure 41(b), Petitioner did not
respond to the Court’s order and the time for doing so has passed. Accordingly, the Petition is
DISMISSED. Judgment shall be entered for Respondent.
APPEAL ISSUES
A § 2255 petitioner may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. APP. P. 22(b)(1). A COA
may issue only if the petitioner has made a substantial showing of the denial of a constitutional
right.
28 U.S.C. § 2253(c)(2)–(3).
A substantial showing is made when the petitioner
demonstrates that “reasonable jurists could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or that the issues presented were ‘adequate
1
to deserve encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied on procedural
grounds, the petitioner must show, ‘at least, that jurists of reason would find it debatable whether
the petition 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.’” Dufresne
v. Palmer, 876 F.3d 248, 252–53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision to
dismiss the Petition. Because any appeal by Cole does not deserve attention, the Court DENIES
a certificate of appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R. App.
P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal would
not be taken in good faith, Petitioner must file his motion to proceed in forma pauperis in the
appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to Rule
24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma
pauperis is therefore DENIED. 1
IT IS SO ORDERED this 23rd day of May, 2019.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
1
If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee
or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court
of Appeals within thirty days.
2
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