United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DISMISSING CASE AND DENYING A
CERTIFICATE OF APPEALABILITY
BERNARD A. FRIEDMAN, SENIOR UNITED STATES DISTRICT JUDGE
November, 2016, Michigan prisoner Derrick Lee Smith filed a
one-page document entitled “Petition for a Writ of
Habeas Corpus under U.S.C. 2254 by a Person in State
Custody.” He did not submit any pleadings in support of
this document, nor did he pay the required filing fee or
submit an application to proceed in forma pauperis.
See 28 U.S.C. § 1914(a); 28 U.S.C. § 1915;
Rule 3 of the Rules Governing § 2254 Cases. The Court,
therefore, issued a deficiency order on November 28, 2016,
requiring him to submit a habeas petition pursuant to 28
U.S.C. § 2254 and to either pay the filing fee or submit
a properly completed in forma pauperis application. The order
provided that if he did not do so within 14 days, his case
would be dismissed.
time for submitting the habeas petition and either the filing
fee or the required information has elapsed, and the
petitioner has failed to correct the deficiencies.
Accordingly, the court dismisses this case without prejudice.
The petitioner may institute a new action by filing a proper
habeas petition with payment of the filing fee or an in forma
pauperis application. This case will not be reopened. The
Court makes no determination as to the merits of any habeas
the petitioner may appeal this decision, a certificate of
appealability must issue. See 28 U.S.C. §
2253(c)(1)(a); Fed. R. App. P. 22(b). 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 court
denies relief on procedural grounds without addressing the
merits of a habeas petition, a certificate of appealability
should issue if reasonable jurists could debate whether the
petitioner states a valid claim of the denial of a
constitutional right and whether the Court's ruling was
correct. See Slack v. McDaniel, 529 ...