Cawthon v. State of Tennessee

Filing 20

ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 10/10/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
ALEXANDER CAWTHON,
Petitioner,
v.
STATE OF TENNESSEE,
Respondent.

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Case No. 1:17-cv-1007-STA-egb

ORDER DISMISSING PETITION,
DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On June 7, 2017, Respondent State of Tennessee filed a motion to dismiss the pro se
§ 2254 Petition of Petitioner Alexander Cawthon (ECF No. 17). Petitioner did not file a brief in
opposition to the Motion. On September 12, 2017, the Court ordered Petitioner to show cause
within twenty-one days why the Motion to Dismiss should not be granted (ECF No. 19).
Although warned that failure to comply with the Order would result in dismissal of the case
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 for Petitioner’s failure to comply with the
Court’s order and for want of prosecution. Judgment shall be entered for Respondent.
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
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 district court rejects a
claim on a procedural ground, the petitioner must show “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.” Slack, 529 U.S. at 478.
In this case, 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 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). But 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.
In this case, for the same reasons 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.
It is so ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: October 10, 2017
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