Opinion
CASE NO. 2:13-CV-10460
03-22-2013
SCOTT EVERETT PAYNTER, Petitioner, v. MARY K. BERGHUIS, Respondent.
HONORABLE GERALD E. ROSEN
OPINION AND ORDER DISMISSING THE PETITION FOR A WRIT OF
HABEAS CORPUS AND DENYING A CERTIFICATE OF APPEALABILITY
The Court has before it Michigan prisoner Scott Everett Paynter's petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (entitled "Motion to Stay Proceedings to Hold Writ of Habeas Corpus in Abeyance"). Petitioner did not pay the required filing fee when he instituted this action, nor did he submit an application to proceed in forma pauperis. See 28 U.S.C. § 1914(a); 28 U.S.C. § 1915; Rule 3 of the Rules Governing § 2254 Cases. The Court, therefore, issued an Order to Correct Deficiency on February 7, 2013 requiring Petitioner to either pay the filing fee or submit a properly completed in forma pauperis application. The order provided that if he did not do so within 21 days, his case would be dismissed. The time for submitting the filing fee or required information has elapsed and Petitioner has failed to correct the deficiency. Accordingly, the Court DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus. The Court makes no determination as to the merits of the petition. This case is CLOSED.
Before Petitioner may appeal the Court's decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a federal court denies relief on procedural grounds without addressing the merits of a habeas petition, a certificate of appealability should issue if it is shown 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, 484-85 (2000). Reasonable jurists could not debate the correctness of the Court's procedural ruling. Accordingly, the Court DENIES a certificate of appealability.
IT IS SO ORDERED.
Gerald E. Rosen
Chief Judge, United States District Court
I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on March 22, 2013, by electronic and/or ordinary mail.
Julie Owens
Case Manager, (313) 234-5135