Opinion
2:15-cv-00152-DPM-JTK
11-12-2015
TIMOTHY J COOPER ADC #158887 PETITIONER v. WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
PROPOSED FINDINGS AND RECOMMENDATIONS INSTRUCTIONS
The following recommended disposition has been sent to United States District court Judge D. P. Marshall, Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendations and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any
documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Clerk, United States District Court
Eastern District of Arkansas
600 West Capitol Avenue, Suite A149
Little Rock, AR 72201-3325
DISPOSITION
Petitioner Timothy Cooper, an inmate at the Arkansas Department of Correction, filed a petition for a writ of habeas corpus (Doc. No. 1, construed as a § 2254 petition in Doc. No. 2) on September 24, 2015. He did not pay the $5 filing fee or petition the Court to proceed in forma pauperis. On September 28, 2015, the Court ordered Mr. Cooper to file an amended petition with the filing fee or a petition to proceed in forma pauperis within thirty days. (Doc. No. 2.) The order warned Mr. Cooper that his failure to follow those instructions would result in the dismissal of his petition.
More than thirty days have passed, and Mr. Cooper has not paid the filing fee or filed a petition to proceed in forma pauperis. Under these circumstances, the Court recommends the District Court dismiss this petition without prejudice for failure to pay the filing fee, failure to comply with Local Rule 5.5(c)(2), and failure to respond to the Court's order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (holding that district courts have the inherent power to dismiss sua sponte a case for failure to prosecute, and the exercise of that power is reviewed for abuse of discretion).
Pursuant to Rule 11 of the Rules Governing Section 2254 Cases in the United States District Courts, the District Court must determine whether to issue a certificate of appealability in its final order. In § 2254 cases, 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)(1)-(2) (2006). The Court finds no issue on which Mr. Cooper made a substantial showing of a denial of a constitutional right. Thus, the District Court should not issue a certificate of appealability
IT IS THEREFORE RECOMMENDED that Mr. Cooper's petition for a writ of habeas corpus (Doc. No. 1) is dismissed without prejudice. The District Court should not issue a certificate of appealability.
SO ORDERED this 12th day of November, 2015.
/s/_________
United States Magistrate Judge