Barker v. Hillhouse

Filing 11

ORDER accepting for 9 Report and Recommendations. This action is dismissed, without prejudice, for petitioner's failure to comply with an order of the court and to prosecute his case. Petitioner is denied a certificate of appealability sua sponte. Any pending motions are denied as moot. Signed by District Judge J. Campbell Barker on 3/6/2025. (ndc)

No. 6:23-cv-00190
Scotty Lemond Barker,
Petitioner,
v.
Botie Hillhouse,
Respondent.
ORDER
Petitioner Scotty Lemond Barker, proceeding pro se and in
forma pauperis, filed this petition for a writ of habeas corpus. Doc.
1. The case was referred to United States Magistrate Judge K. Nicole Mitchell. Doc. 3.
The order granting petitioner’s in forma pauperis motion was
returned as undeliverable, with a “RELEASED” notation on the
envelope. Doc. 6. The magistrate judge then ordered petitioner to
update his address or have his petition denied and case dismissed.
Doc. 7. The order was mailed to petitioner and returned as undeliverable, again with the “RELEASED” notation. Doc. 8.
On December 6, 2024, the magistrate judge issued a report
recommending that this case be dismissed, without prejudice, for
petitioner’s failure to comply with an order of the court and to
prosecute his case. Doc. 9. The magistrate judge further recommended that petitioner be denied a certificate of appealability sua
sponte, which would refer to this case only and would not prevent
refiling. A copy of this report was sent to petitioner at his lastknown address. Again, the mail was returned as undeliverable
with the “RELEASED” notation. Doc. 10. Petitioner has not filed
objections, complied with the underlying order, or otherwise
communicated with the court.
When there have been no timely objections to a magistrate
judge’s report and recommendation, the court reviews it only for
clear error. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
-1-

1420 (5th Cir. 1996). Having reviewed the magistrate judge’s report, and being satisfied that it contains no clear error, the court
accepts its findings and recommendation. 1 This action is dismissed, without prejudice, for petitioner’s failure to comply with
an order of the court and to prosecute his case. Petitioner is denied a certificate of appealability sua sponte. Any pending motions are denied as moot.
So ordered by the court on March 6, 2025.

J. C AM PB EL L B A RK ER
United States District Judge

1

Although a dismissal without prejudice has the effect of a dismissal with
prejudice if the statute of limitations has expired, see Haynes v. Turner Bass &
Assocs., No. 20-40787, 2022 WL 2383855, at *1 (5th Cir. July 1, 2022), petitioner’s claims here are moot because the information before the court suggests that petitioner has been released, and he has failed to show otherwise.
Zalawadia v. Ashcroft, 371 F.3d 292, 297 (5th Cir. 2004) (“for a court to exercise habeas jurisdiction over a petitioner no longer in custody, the petitioner
must demonstrate that he was in custody at the time he filed the petition and
that his subsequent release has not rendered the petition moot”) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Equitable tolling of the statute of limitations is not appropriate because petitioner has not demonstrated (and likely
cannot demonstrate) that “he has been pursuing his rights diligently.” Holland
v. Florida, 560 U.S. 631, 649 (2010). If petitioner attempts to refile, arguing
that tolling is warranted, the court can reconsider the question then.
Alternatively, petitioner’s conduct justifies a dismissal having the effect
of being with prejudice. He filed a deficient habeas petition, leaving it entirely
blank except for the assertion that “Henderson County Jail violated my constitutional right . . . by housing me in a[n] improper diversified housing pod
tha[t] endangered my life.” Doc. 1. For more than a year and a half, the court
has not heard from him. He was ordered to supply his current address almost
five months ago and has failed to respond.

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