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McClain v. United States

United States District Court, W.D. Tennessee, Eastern Division

October 17, 2019

JAMES LEE MCCLAIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER CONSTRUING PLEADING AS A § 2254 PETITION, DISMISSING PETITION WITHOUT PREJUDICE, DENYING MOTIONS AS MOOT, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE.

         On July 31, 2019, Petitioner, James Lee McClain, filed a pro se habeas corpus petition (the “Petition”), on a pleading form used for cases brought pursuant to 28 U.S.C. § 2255. (Docket Entry (“D.E.”) 1.) He subsequently filed a motion for appointment of counsel, (D.E. 3), and a motion styled “Motion for Issuance of Writ Without Application Pursuant to T.C.A. 29-21-104, ” (D.E. 5). For the following reasons, the Petition is DISMISSED without prejudice, and the motions are DENIED as moot.

         The inmate challenges a judgment of conviction entered in June 2019 in the Circuit Court of Madison County, Tennessee. (D.E. 1 at PageID 1.) The Petition is therefore in the nature of a pleading brought pursuant to 28 U.S.C. § 2254, and the Court liberally construes it as such.[1] See 28 U.S.C. § 2254(a) (“[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.”) (emphasis added).

         Under these circumstances, the Court would normally require the inmate to refile the Petition on the Court's § 2254 form. However, it is apparent that McClain has not exhausted his state court remedies, as required by statute. See 28 U.S.C. § 2254(b)(1) (“An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State.”). Specifically, he admits that his direct appeal from his judgment of conviction is “still pending.” (D.E. 1 at PageID 2.) That fact is confirmed by the Tennessee Appellate Court Case Search website.[2] Because the claims presented in the Petition have not been exhausted, dismissal of the Petition is warranted. See Rose v. Lundy, 455 U.S. 509, 518-22 (1982).

         The Petition is therefore DISMISSED without prejudice. The pending motions are DENIED as moot.

         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, 253 (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. 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.[3]

         IT IS ORDERED.

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Notes:

[1] It appears that Petitioner simply used the incorrect form, as there are no judgments of conviction against Petitioner in this federal district. See 28 U.S.C. § 2255(a) (“A prisoner in custody under sentence of a court established by Act of Congress . . . may move the court which imposed ...


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