Gwin v. Osborne

Filing 10

Order Correcting the Docket, Order of Dismissal Without Prejudice, Order Denying a Certificate of Appealability, Order Certifying that an Appeal Would Not be Taken in Good Faith, and Order Denying Leave to Proceed In Forma Pauperis on Appeal. Signed by Judge S. Thomas Anderson on 8/7/12. (Anderson, S.)

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

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JERMAINE GWIN,
Petitioner,
vs.
DAVID R. OSBORNE,
Respondent.

No. 11-2798-STA-cgc

ORDER CORRECTING THE DOCKET
ORDER OF DISMISSAL WITHOUT PREJUDICE
ORDER DENYING A CERTIFICATE OF APPEALABILITY
ORDER CERTIFYING THAT AN APPEAL WOULD NOT BE TAKEN IN GOOD FAITH
AND
ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

On

September

14,

2011,

Petitioner

Jermaine

Gwin,

Tennessee Department of Correction prisoner number 422697, who is
currently an inmate at the Southeastern Tennessee State Regional
Correctional Facility in Pikeville, Tennessee, filed a pro se
petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
(ECF No. 1.)1 Although Petitioner submitted a copy of the official
form, he did not fill out the portions of the form that called for
information about the issues presented and his efforts to exhaust

1
The Clerk is directed to correct the docket to reflect Petitioner’s
new address and to mail a copy of this order and the judgment to him at that
address.

those issues in state court. Instead, the form petition referred to
the supporting legal memorandum. (See ECF No. 1 at 5, 6, 8.)
On January 20, 2012, the Court issued an order that,
inter alia, directed Petitioner to file an amended petition on the
official form within thirty (30) days. (ECF No. 6.) That order
stated that,
[a]lthough Petitioner filed the official form, he did not
complete ¶ 12 of the form, which requires petitioners to
list their grounds for relief, the facts supporting those
grounds, and their efforts to exhaust those grounds in
state court. Instead, Petitioner refers to his legal
memorandum. Petitioner is required to completely fill out
the official form to permit the Court efficiently to
review the issues raised.
(Id. at 2.) Gwin was notified that a “[f]ailure timely to comply
with any requirement of this order will result in dismissal of the
petition without prejudice, pursuant to Fed. R. Civ. P. 41(b), for
failure to prosecute.” (Id. at 2.)
On February 15, 2012, Gwin submitted an amended petition
that is not on the official form and that did not address the
issues Petitioner seeks to raise. (ECF No. 6.) The Court issued an
order on May 29, 2012, that ordered Gwin, for the second time, to
file an amended petition on the official form that is signed under
penalty of perjury. (ECF No. 7 at 1.) Gwin was notified that his
amended petition was due in thirty (30) days (id.) and that “[a]
failure to comply with any requirement of this order in a timely
manner will result in dismissal of the petition without prejudice,

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pursuant to Federal Rule of Civil Procedure 41(b), for failure to
prosecute” (id. at 2).
On July 5, 2012, the Clerk docketed another amended
petition, accompanied by a legal memorandum. (ECF No. 9.)2 That
petition suffers from the same defect as the original petition.
Although Petitioner submitted a copy of the official form, he did
not fill out the portions of the form about the issues presented.
Instead,

the

form

petition

referred

to

the

supporting

legal

memorandum.
Because Gwin has not complied with the Court’s orders
despite two opportunities to correct the defects in the initial
petition, the Court DISMISSES the action WITHOUT PREJUDICE pursuant
to Rule 41(b). Judgment shall be entered for Respondent.
There is no absolute entitlement to appeal a district
court’s denial of a § 2254 petition. Miller-El v. Cockrell, 537
U.S. 322, 335 (2003); Bradley v. Birkett, 156 F. App’x 771, 772
(6th Cir. 2005). The Court must issue or deny a certificate of
appealability (“COA”) when it enters a final order adverse to a §
2254 petitioner. Rule 11, Rules Governing Section 2254 Cases in the
United States District Courts. A petitioner may not take an appeal
unless a circuit or district judge issues a COA. 28 U.S.C. §
2253(c)(1); Fed. R. App. P. 22(b)(1).

2

That filing was received in the prison mailroom on July 3, 2012 (ECF
No. 9-2) and it is, therefore, untimely.

3

A COA may issue only if the petitioner has made a
substantial showing of the denial of a constitutional right, and
the COA must indicate the specific issue or issues that satisfy the
required showing. 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, 537 U.S. at 336 (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)); Henley v. Bell, 308 F.
App’x 989, 990 (6th Cir. 2009) (per curiam) (same). A COA does not
require a showing that the appeal will succeed. Miller-El, 537 U.S.
at 337; Caldwell v. Lewis, 414 F. App’x 809, 814-15 (6th Cir. 2011)
(same). Courts should not issue a COA as a matter of course.
Bradley, 156 F. App’x at 773 (quoting Slack, 537 U.S. at 337).
In this case, there can be no question that Petitioner
has

not

filed

an

amended

petition

and

has

not

requested

an

extension of time in which to do so. Because any appeal by
Petitioner on the issues raised in this petition does not deserve
attention, the Court DENIES a certificate of appealability.
Rule 24(a)(1) of the Federal Rules of Appellate Procedure
provides that a party seeking pauper status on appeal must first
file a motion in the district court, along with a supporting
affidavit. However, if the district court certifies that an appeal

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would not be taken in good faith, or otherwise denies leave to
appeal in forma pauperis, the prisoner must file his motion to
proceed in forma pauperis in the appellate court. See Fed. R. App.
P. 24(a) (4)-(5). In this case, for the same reasons the Court
denies a certificate of appealability, the Court determines that
any appeal would not be taken in good faith. It is therefore
CERTIFIED, pursuant to Federal Rule of Appellate Procedure 24(a),
that any appeal in this matter would not be taken in good faith,
and leave to appeal in forma pauperis is DENIED.
IT IS SO ORDERED this 7th day of August, 2012.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
UNITED STATES DISTRICT JUDGE

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