Webb v. Phillips

Filing 20

ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge J. Daniel Breen on 10/21/20. (cdi)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
BRIAN LEE WEBB,
Petitioner,
v.

No. 1:17-cv-01095-JDB-jay

MIKE PARRIS,
Respondent.
ORDER DISMISSING PETITION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
Petitioner, Brian Lee Webb, filed a pro se habeas corpus petition (the “Petition”), pursuant
to 28 U.S.C. § 2254. (Docket Entry (“D.E.”) 2.) By order dated September 25, 2020, the Court
found that Petitioner had not notified the Clerk of Court of his change of address, an event which
appears to have occurred more than two years ago. (D.E. 19.) The inmate was therefore ordered
to show cause within twenty-one days why the Petition and the case should not be dismissed for
lack of prosecution. Although he was warned that failure to comply with the order would result
in dismissal without further notice, he did not file a response and the time for doing so has passed.
The Petition and the case are therefore DISMISSED for Webb’s failure to comply with the Court’s
order and for lack of prosecution. See Fed. R. Civ. P. 41(b).
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) (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 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). 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.
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

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

IT IS SO ORDERED this 21st day of October 2020.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE

3