Opinion
Case No. 1:17-cv-1132-STA-egb
10-16-2017
CHRISTOPHER CUNNINGHAM, Petitioner, v. CHERRY LINDAMOOD, Respondent.
ORDER DISMISSING PETITION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
On July 3, 2017, Petitioner, Christopher Cunningham, filed a pro se habeas corpus petition under 28 U.S.C. § 2254 ("Petition"). (ECF No. 1). The Court subsequently ordered Petitioner to file an amended petition on the Court's official form within twenty-eight days. (ECF No. 5.) The Court warned Petitioner that failure to timely file an amended petition would result in dismissal of the case under Fed. R. Civ. P. 41(b). (Id.)
Petitioner has not filed an amended petition, and the time for doing so has passed. The Petition is therefore DISMISSED without prejudice for Petitioner's failure to follow 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). A "substantial showing" is made when the petitioner demonstrates that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)).
In this case, reasonable jurists would not debate the correctness of the Court's decision to dismiss the Petition. 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 reasons 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: October 16, 2017