United States District Court, E.D. Tennessee, Winchester
S. MATTICE, JR. UNITED STATES DISTRICT JUDGE
a pro se prisoner's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 [Doc. 20]. On April 16,
2019, the Court entered an order finding that the § 2254
petition is time-barred and that Petitioner had not set forth
any reason that the Court should find that he is entitled to
equitable tolling [Doc. 23 p. 1-3]. Accordingly, the Court
provided Petitioner fifteen days from the date of entry of
that order to show good cause as to why his petition should
not be dismissed and notified Petitioner that if he did not
timely comply therewith, this action would be dismissed for
want of prosecution and failure to comply with Court orders
[Id. at 3]. More than two months have passed and
Petitioner has not complied with this order or otherwise
communicated with the Court, however. Accordingly, for the reasons
set forth below, this action will be
Rule of Civil Procedure 41(b) gives this Court the authority
to dismiss a case for “failure of the plaintiff to
prosecute or to comply with these rules or any order of the
court.” See, e.g., Nye Capital
Appreciation Partners, L.L.C. v. Nemchik, 483 Fed.Appx.
1, 9 (6th Cir. 2012); Knoll v. Am. Tel. & Tel.
Co., 176 F.3d 359, 362-63 (6th Cir. 1999). The Court
considers four factors when considering dismissal under
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal was ordered.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005); see Reg'l Refuse Sys., Inc. v. Inland
Reclamation Co., 842 F.2d 150, 155 (6th Cir. 1988).
the first factor, the Court finds that Petitioner's
failure to respond to or comply with the Court's previous
order is due to Petitioner's willfulness and/or fault.
Specifically, as the Court sent the previous order to the
current address listed for Petitioner by the Tennessee
Department of Correction and the United States Postal Service
has not returned the Court's mail, it appears that
Petitioner received the Court's previous order and chose
not to respond thereto. As such, this factor weighs in favor
the second factor, the Court finds that Petitioner's
failure to comply with the Court's order has not
the third factor, the record reflects that the Court warned
Petitioner that the Court would dismiss this case if he
failed to comply with the Court's order [Id.].
as to the fourth factor, the Court finds that alternative
sanctions would not be effective. Petitioner is a prisoner
who is not communicating with the Court and has not pursued
this case in more than one and a half years.
reasons set forth above, the Court concludes that the
relevant factors weigh in favor of dismissal of this action
pursuant to Rule 41(b).
Court must now decide whether to grant Petitioner a
certificate of appealability (“COA”). A COA
should issue where a petitioner makes a “substantial
showing of a denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). When a district court denies a
habeas petition on a procedural basis without reaching the
underlying claim, a COA should only issue if “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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Court is dismissing this petition because Petitioner failed
to prosecute this action and did not comply with a Court
order, a procedural ground. Reasonable jurists could not find
that this dismissal is debatable or wrong. Accordingly, a
certificate of appealability shall not issue.
Court CERTIFIES that any appeal from this
action would not be taken in good faith and would be totally
frivolous. Fed. R. App. P. 24.
APPROPRIATE JUDGMENT ...