Opinion
CV 123-007
05-09-2023
DARIAN POSTELL, Petitioner, v. WARDEN SMITH, Respondent.
ORDER
J. RANDAL HALL, CHIEF JUDGE
On April 17, 2023, the Court adopted the Magistrate Judge's Report and Recommendation (“R&R”) and closed this civil action. On May 3, 2023, the Court received Plaintiffs objections to the R&R, dated March 7, 2023. (Doc. no. 17.) The Court therefore VACATES the April 17th Adoption Order. (Doc. no. 15.)
After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed, (doc. no. 17). The Magistrate Judge recommended dismissing the habeas corpus petition because Petitioner failed to: (1) exhaust state court remedies, and (2) pay the $5.00 filing fee or move to proceed in forma pauperis (“IFP”). Petitioner belatedly filed a motion to proceed IFP. (Doc. nos. 9,10.) Petitioner has submitted an inmate trust account statement showing that he has insufficient funds to pay the $5.00 filing fee, therefore, the Court GRANTS Plaintiffs request to proceed IFP. (Doc. no. 9.)
Thus, dismissal for failure to exhaust state court remedies is the only proper basis for dismissal. Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate Judge, as modified herein, as its opinion and DISMISSES this petition filed pursuant to 28 U.S.C. § 2254 without prejudice.
A prisoner seeking relief under § 2254 must obtain a certificate of appealability (“COA”) before appealing the denial of his application for a writ of habeas corpus. This Court “must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a) to the Rules Governing Section 2254 Proceedings. This Court should grant a COA only if the prisoner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the reasons set forth in the Report and Recommendation, and in consideration of the standards enunciated in Slack v, McDaniel, 529 U.S. 473, 482-84 (2000), Petitioner has failed to make the requisite showing. Accordingly, the Court DENIES a COA in this case. Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith, and Petitioner is not entitled to appeal in forma pauperis. See 28 U.S.C. § 1915(a)(3).
If the court denies a certificate, the parties may not appeal the denial but may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Rule 11(a) to the Rules Governing Section 2254 Proceedings.
Upon the foregoing, the Court CLOSES this civil action.
SO ORDERED.