Opinion
1:22-cv-01030-STA-jay
10-24-2022
MICKEY V. SHANKLIN, Petitioner, v. VINCENT VANTELL, Respondent.
ORDER GRANTING MOTION TO DISMISS, DISMISSING PETITION WITHOUT PREJUDICE, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS
S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE
On February 17, 2022, Petitioner Mickey V. Shanklin filed a pro se habeas corpus petition (the “Petition”), pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner asserts a single claim of ineffective assistance of counsel. Respondent Vincent Vantell filed a motion to dismiss the Petition for Shanklin's failure to exhaust his sole claim. (ECF No. 11.) By order dated September 6, 2022, the Court directed Petitioner to show cause why the Petition should not be dismissed for his failure to pursue his claim in state court. (ECF No. 12.) On September 23, 2022, Shanklin filed a response to the show-cause order. (ECF No. 13.) He asserts therein that he recently filed a state post-conviction petition and that a state-court hearing has been scheduled. Because the Petition in the present matter is premature, the motion to dismiss is GRANTED. The Petition is hereby DISMISSED without prejudice to refiling after Petitioner has exhausted his state court remedies.
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 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the petition was denied on procedural grounds, the petitioner must show, ‘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.'” Dufresne v. Palmer, 876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court's decision to dismiss the Petition without prejudice. 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.
If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty days.
IT IS SO ORDERED.