Opinion
CASE NO. 18-3125-SAC
08-29-2018
ANTHONY EUGENE CLARK, Plaintiff, v. CITY OF TOPEKA, et al., Defendants.
MEMORANDUM AND ORDER
This case comes before the Court on Petitioner Anthony Eugene Clark's Petition for writ of habeas corpus under 28 U.S.C. § 2241, originally filed as a complaint under 42 U.S.C. § 1983. On June 28, 2018, the Court entered a Memorandum and Order and Order to Show Cause (ECF Doc. 3) granting Petitioner to and including July 27, 2018, to show cause why this matter should not be construed as a habeas corpus petition and why it should not be dismissed for failure to exhaust state remedies. The Order states that "failure to file a timely response may result in the complaint being dismissed for the reasons stated herein without further notice." (ECF Doc. 3, at 5.) Petitioner has failed to file a response within the allowed time, and the Petition is dismissed without prejudice.
The rules applicable to proceedings under 28 U.S.C. § 2254 provide that the district court may apply those rules in other habeas matters. See, Rules Governing Habeas Cases Under § 2254. Rule 11 of those rules, which the Court applies in these § 2241 proceedings, requires the district court to issue or deny a certificate of appealability ("COA") when it enters a final order adverse to the applicant. A petitioner is entitled to a COA only upon making a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition 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). The failure to satisfy either prong requires the denial of a COA. Id. at 485.
The COA requirement is applicable to these proceedings. "A state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such petition was filed pursuant to § 2254 or § 2241, whenever 'the detention complained of [in the petition] arises out of process issued by a State court.'" Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000)(quoting 28 U.S.C. § 2253(c)(1)). --------
The Court finds nothing in the present record that suggests its ruling is debatable or an incorrect application of the law and therefore declines to issue a certificate of appealability.
IT IS THEREFORE ORDERED that this matter is dismissed without prejudice.
IT IS SO ORDERED.
DATED: This 29th day of August, 2018, at Topeka, Kansas.
s/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge