United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DISMISSING WITHOUT
PREJUDICE THE PETITION FOR WRIT OF HABEAS CORPUS AND
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY
H. CLELAND UNITED STATES DISTRICT JUDGE
Carlos Hicks, presently confined at the Ionia Maximum
Correctional Facility in Ionia, Michigan, has filed a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. (Dkt. # 1.) Petitioner challenges his conviction
for assault with intent to commit murder, felon in possession
of a firearm, and felony-firearm.
February 8, 2017, Magistrate Judge R. Steven Whalen signed an
“Order to Correct Deficiency, ” in which
Petitioner was ordered to submit a $5.00 fee for filing a
habeas corpus petition or an application to proceed in
forma pauperis within twenty one days. (Dkt. # 3.) On
February 13, 2017, Magistrate Judge Whalen signed a second
“Order to Correct Deficiency, ” in which
Petitioner was ordered to submit two copies of his habeas
petition so the Clerk of the Court could serve Respondent and
the Michigan Attorney General's Office. (Dkt. # 4.)
Petitioner was given thirty days to comply with this second
order. Petitioner was also warned that failure to comply with
either order could result in dismissal of his action. To
date, Petitioner has failed to comply with either deficiency
order. Accordingly, the court will dismiss the petition
prisoner who seeks habeas corpus relief does not comply with
a district court's directions in a deficiency order
regarding the prisoner's failure to pay the full filing
fee and his failure to provide the required documentation to
apply to proceed in forma pauperis, the district
court must presume that the prisoner is not a pauper, assess
the full filing fee, and dismiss the case for want of
prosecution. See Gravitt v. Tyszkiewicz, 14 F.
App'x. 348, 349 (6th Cir. 2001) (citing McGore v.
Wrigglesworth, 114 F.3d 601, 605 (6th Cir. 1997)).
Magistrate Judge Whalen's first deficiency order clearly
stated that Petitioner was required to submit either the
filing fee or an application to proceed in forma
pauperis. The deficiency order also expressly warned
Petitioner that failure to comply with the order could result
in the dismissal of his action. (See Dkt. # 3.)
Because Petitioner failed to pay the filing fee or submit the
required application to proceed in forma pauperis,
his petition is subject to dismissal for want of prosecution.
Gravitt, 14 F. App'x. at 349.
application is similarly flawed for failing to comply with
the second deficiency order. The habeas rules require the
Clerk of the Court to serve a copy of the habeas petition and
a copy of any order requiring responsive pleadings on the
respondent and on the Attorney General for the State of
Michigan by first class mail as provided in Rule 4 of the
Rules Governing § 2254 Cases. Failure to do so justifies
dismissal. See, e.g., Moore v. Hawley, 7
F.Supp.2d 901, 903 (E.D. Mich. 1998).
district court may sua sponte dismiss a habeas
action pursuant to Federal Rule of Civil Procedure 41(b) for
a habeas petitioner's failure to prosecute or to comply
with a court order. See Adams v. Justice, 145 F.
App'x. 889, 890 (5th Cir. 2005); Norlander v.
Plasky, 964 F.Supp. 39, 41 (D. Mass. 1997). Because
Petitioner has failed to comply with two dismissal orders,
the court will, sua sponte, dismiss the petition for
writ of habeas corpus without prejudice.
Court will also deny a certificate of appealability to
Petitioner. In order to obtain a certificate of
appealability, a prisoner must make a substantial showing of
the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). When a district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claims, a certificate of
appealability should issue, and an appeal of the district
court's order may be taken, if the petitioner shows 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,
484 (2000). When a plain procedural bar is present and the
district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petition should be allowed to proceed further. In such a
circumstance, no appeal would be warranted. Id. The
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” Rules Governing § 2254 Cases, Rule
11(a), 28 U.S.C. foll. § 2254. Because the dismissal of
the petition based on Petitioner's failure to cure his
filing deficiencies would not be debatable amongst jurists of
reason, see Soeken v. Estep, 270 F. App'x. 734,
735-36 (10th Cir. 2008), the court will decline to issue a
certificate of appealability.
ORDERED that the Petitioner's February 8, 2017
“Petition for Writ of Habeas Corpus” (Dkt. # 1)
is DISMISSED WITHOUT PREJUDICE. Nothing in this order
precludes Petitioner from submitting a new habeas petition