Clark v. Lindamood

Filing 29

ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 1/18/23. (mbm)

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Case 1:16-cv-01218-JDB-jay Document 29 Filed 01/18/23 Page 1 of 3 PageID 1430 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION GRICO CLARK, Petitioner, v. No. 1:16-cv-01218-JDB-jay CHANCE LEEDS, Respondent. ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS The Petitioner, Grico Clark, filed a pro se habeas corpus petition (the “Petition”), pursuant to 28 U.S.C. § 2254. (Docket Entry (“D.E.”) 1.) On December 14, 2022, the Court found that Petitioner had failed to notify the Court of the completion of his state court actions, as required by the May 13, 2019, order (see D.E. 27) continuing the stay of proceedings in this matter. (D.E. 28.) The Court therefore directed the inmate to show cause within twenty-eight days why the Petition should not be dismissed for his failure to notify the Court of the conclusion of his state cases and for lack of prosecution. Although he was warned that failure to comply with the show cause order would result in dismissal of the Petition and this case under Federal Rule of Civil Procedure 41(b), he did not file a response and the time for doing so has passed. The Petition and this case are therefore DISMISSED for Clark’s failure to comply with the Court’s order and for lack of prosecution. APPEAL ISSUES A § 2254 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 Case 1:16-cv-01218-JDB-jay Document 29 Filed 01/18/23 Page 2 of 3 PageID 1431 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 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 matter, reasonable jurists would not debate the correctness of the Court’s decision to dismiss the Petition. Because any appeal by Petitioner does not deserve attention, the Court DENIES a COA. 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, the prisoner must file his motion to proceed in forma pauperis in the appellate court. Id. Here, 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 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 Case 1:16-cv-01218-JDB-jay Document 29 Filed 01/18/23 Page 3 of 3 PageID 1432 IT IS SO ORDERED this 18th day of January 2023. s/ J. DANIEL BREEN UNITED STATES DISTRICT JUDGE 3

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