United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT
OF HABEAS CORPUS, DENYING A CERTIFICATE OF APPEALABILITY, AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
STEPHEN J. MURPHY, III United States District Judge
case sounds in habeas corpus brought pursuant to 28 U.S.C.
§ 2254. Michigan parolee Kelley Favors was convicted of
aggravated stalking, Mich. Comp. Laws § 750.411i,
pursuant to a plea in the Macomb County Circuit Court in
2011. He was initially sentenced to a probationary term, but
after violating the conditions of his probation, he was
sentenced as a second habitual offender to 17 months to five
years imprisonment in 2013. Mich. Comp. Laws § 769.10.
Favors instituted the present habeas action in November 2014.
In his pro se pleadings, Favors raises claims concerning the
validity of his plea, a change in his probationary sentence
from two years to five years to comport with state law, and
the effectiveness of trial counsel. Respondent has filed an
answer to the petition and informs the Court that Favors is
on parole and contends that his claims are procedurally
defaulted and/or lack merit. See Resp., ECF No. 6.
For the reasons below, the Court will dismiss the petition
without prejudice. The Court also concludes that a
certificate of appealability and leave to proceed in forma
pauperis on appeal must be denied.
Rule 11.2 authorizes the Court to dismiss a case based upon a
party's failure to keep the Court apprised of address
changes and updated contact information. The rule states:
Every attorney and every party not represented by an attorney
must include his or her contact information consisting of his
or her address, e-mail address, and telephone number on the
first paper that person files in a case. If there is a change
in the contact information, that person promptly must file
and serve a notice with the new contact information. The
failure to file promptly current contact information may
subject that person or party to appropriate sanctions, which
may include dismissal, default judgment, and costs.
L.R. 11.2. Pro se litigants have the same obligation as an
attorney to notify the court of a change of address.
Carey v. King, 856 F.2d 1439, 1441 (9th Cir.1988).
"'[Petitioner] has the duty to inform the court of
any address changes, ' and it is not incumbent upon this
Court or its staff to keep track of Petitioner's current
address." Thompkins v. Metrish, No. 2:07-CV-12,
2009 WL 2595604, at *1 n.1 (W.D. Mich. Aug. 20, 2009)
(quoting Kelly v. Wal-Mart, Inc., No. 7:07-CV-0089,
2007 WL 2847068, at *1 (N.D.N.Y. Sept. 26, 2007)).
Civil Rule 41(b) authorizes a federal court to dismiss a case
if "the plaintiff fails to prosecute or to comply with
these rules or a court order, " Fed.R.Civ.P. 41(b), and
Local Rule 41.2 authorizes the Court to dismiss a case
"when it appears that . . . the parties have taken no
action for a reasonable time." L.R. 41.2. The Court may
therefore dismiss a civil action for failure to prosecute.
See Mulbah v. Detroit Bd. of Educ., 261 F.3d 586,
589 (6th Cir. 2001) (citing Link v. Wabash R.R. Co.,
370 U.S. 626 (1962)).
after Favors filed his habeas petition in November 2014, the
Court sent him a notice advising him of Local Rule 11.2 and
his duty to inform the Court of any change of address.
See Not., ECF No. 2. The notice stated that the
failure to provide updated contact information could result
in dismissal of his case. Id.; see also Watsy v.
Richards, No. 86-1856, 1987 WL 37151 (6th Cir. April 20,
1987) (affirming a district court's dismissal under
similar circumstances). The record indicates that Favors has
been released on parole and has not communicated with the
Court since he filed his habeas petition nearly two years
ago. Because Favors has failed to provide the Court with his
current address and updated contact information as required
by Local Rule 11.2 and the Court's notice, the Court will
dismiss the case without prejudice for want of prosecution.
Favors may appeal the Court's decision, a certificate of
appealability must issue. 28 U.S.C. § 2253(c)(1)(a);
Fed. R. App. P. 22(b). A federal district court must issue or
deny a certificate of appealability when denying relief. Rule
11(a) of the Rules Governing 2254 Cases, 28 U.S.C. foll.
§ 2254. A certificate of appealability may issue
"only if the applicant has made a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). When a federal court denies relief on procedural
grounds without addressing the merits of a habeas petition, a
certificate of appealability should issue if it is shown that
jurists of reason would find it debatable whether the
petitioner 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. Slack v. McDaniel, 529 U.S. 473,
considered the matter, the Court concludes that reasonable
jurists could not debate the correctness of the Court's
procedural ruling. A certificate of appealability is
the Court concludes that Favors should not be allowed to
proceed in forma pauperis on appeal as an appeal cannot be
taken in good faith. See Fed. R. App. P. 24(a).
it is hereby ORDERED that the petition for a
writ of habeas corpus is DISMISSED WITHOUT
IS FURTHER ORDERED that a certificate of
appealability and leave to proceed in forma ...