Opinion
22-3208-JWL-JPO
11-04-2022
ROGER ALLEN COLLINS, JR., Petitioner, v. TOMMY WILLIAMS, Respondent.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM United States District Judge.
This matter is a pro se petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by Kansas state prisoner Roger Allen Collins, Jr. to challenge his 2021 conviction in Sedgwick County, Kansas. (Doc. 1.) The Court conducted a review of the amended petition under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and it appeared that the claims within are not exhausted. Accordingly, on September 28, 2022, the Court directed Petitioner to show cause why this matter should not be dismissed without prejudice to refiling after he exhausts his claims in state court. (Doc. 4.) The order set the response deadline as October 28, 2022, and cautioned Petitioner that if he “fails to file a timely response to this order, this matter will be dismissed without prejudice for failure to exhaust.” Id. at 5.
The deadline to respond to the order to show cause has passed and Petitioner has not filed a response. Thus, the Court will dismiss this matter without prejudice for failure to exhaust available state court remedies, as set forth in the previous order. See id. at 4-5. The motion to proceed in forma pauperis (Doc. 2) will be denied as moot.
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability (COA) upon entering a final adverse order.
“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 Court concludes that its procedural ruling in this matter is not subject to debate among jurists of reason. Therefore, the Court declines to issue a certificate of appealability.
IT IS THEREFORE ORDERED that this matter is dismissed without prejudice for failure to exhaust state court remedies. The motion to proceed in forma pauperis (Doc. 2) is therefore denied as moot. No certificate of appealability will issue.
IT IS SO ORDERED.