Opinion
No. 1:14-cv-01222-STA-egb
05-08-2017
JEREMY CROSBY, Petitioner, v. MIKE PARRIS, Respondent.
ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On July 31, 2014, Petitioner, Jeremy Crosby, filed a habeas corpus petition pursuant to 28 U.S.C. § 2254. (ECF No. 1.) On April 13, 2017, the Court ordered Petitioner to show cause within twenty-one days why this case should not be dismissed for lack of prosecution. Petitioner was warned that failure to comply with the order would result in dismissal of this action without further notice pursuant to Fed. R. Civ. P. 41(b).
Petitioner has not responded to the Court's show order, and the time for doing so has passed. Accordingly, the petition is DISMISSED for Petitioner's failure to comply with the Court's order and for want of prosecution. Judgment shall be entered for Respondent.
APPEAL ISSUES
A § 2254 petitioner may not proceed on appeal unless a district or circuit judge issues a certificate of appealability ("COA"). 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22(b)(1). A COA may issue only if the petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. §§ 2253(c)(2) & (3). Although a COA does not require a showing that the appeal will succeed, Miller-El v. Cockrell, 537 U.S. 322, 337 (2003), a court should not issue a COA as a matter of course. Bradley v. Birkett, 156 F. App'x 771, 773 (6th Cir. 2005).
In this case, there is no question that the petition should be dismissed for the reason stated. Because any appeal by Petitioner does not deserve attention, the Court DENIES a certificate of appealability.
Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on appeal must first file a motion in the district court, along with a supporting affidavit. FED. R. APP. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis in the appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in forma pauperis is therefore DENIED.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: May 8, 2017