Moody v. Parris et al

Filing 6


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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION GREGORY L. MOODY, Petitioner, v. MICHAEL PARRIS, and HERBERT HARRISON SLATTERY, III, Respondents. ) ) ) ) ) ) ) ) ) ) ) ) No. 1:17-cv-1187-STA-egb ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS On September 27, 2017, Petitioner, Gregory L. Moody, filed a pro se habeas corpus petition (ECF No. 1) under 28 U.S.C. § 2254 (“Petition”). By Order dated October 4, 2017 (ECF No. 5), the Court directed Petitioner to file an amended petition on the Court’s official form within twenty-eight days. 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 file an amended petition and the time for doing so has passed. Accordingly, the Petition is DISMISSED without prejudice for failure to prosecute. 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)). 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 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: November 7, 2017 2

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