Moody v. Parris et al
ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Chief Judge S. Thomas Anderson on 11/7/17. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
GREGORY L. MOODY,
MICHAEL PARRIS, and
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.
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
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
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