Bailey v. Batts
Filing
14
ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 12/27/17. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JOHN ANTHONY BAILEY,
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Petitioner,
v.
MYRON L. BATTS,
Respondent.
No. 1:17-cv-01048-STA-egb
ORDER DISMISSING PETITION,
DENYING CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner John Anthony Bailey filed a pro se habeas corpus petition (the “Petition”)
pursuant to 28 U.S.C. § 2254 (ECF No. 1). By Order dated December 5, 2017, the Court
directed Petitioner to show cause within fourteen days why the case should not be dismissed for
lack of prosecution (ECF No. 13). 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 is to be entered 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 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) (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 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 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.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: December 27, 2017.
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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