United States District Court, W.D. Tennessee, Eastern Division
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
DANIEL BREEN, UNITED STATES DISTRICT JUDGE.
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
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. 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).
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. 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,
Petition is therefore DISMISSED without prejudice. The
pending motions are DENIED as moot.
§ 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).
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.
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.
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.
 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 ...