Vaughn v. Perry

Filing 15

ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 11/9/17. (mbm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION

JEFFERY L. VAUGHN,
Petitioner,
v.

Case No. 1:17-cv-1038-JDB-egb

GRADY PERRY,
Respondent.

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

On March 9, 2017, Petitioner, Jeffery L. Vaughn, filed a pro se habeas corpus petition
under 28 U.S.C. § 2254 (the “Petition”). (Docket Entry (“D.E.”) 1.) Respondent, Grady Perry,
thereafter filed a motion to dismiss the Petition as untimely. (D.E. 12.) Vaughn did not file a
brief in opposition to the motion to dismiss. On June 21, 2017, he moved to amend the Petition
to add a claim. (D.E. 13.) By order dated October 10, 2017, the Court directed Petitioner to
show cause within twenty-one days why the motion to dismiss should not be granted and,
relatedly, why his motion to amend the Petition should not be denied as futile. (D.E. 14.)
Although warned that failure to comply with the order would result in dismissal of his case under
Federal Rule of Civil Procedure 41(b), Petitioner did not respond to the order and the time for
doing so has expired.
Accordingly, the Petition is DISMISSED for failure to comply with the Court’s order and
for want of prosecution. The Clerk of Court is DIRECTED to enter judgment for Respondent.

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
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 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.

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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 this 9th day of November 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

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