United States District Court, W.D. Tennessee, Western Division
ORDER DISMISSING MOTION UNDER 28 U.S.C. § 2255,
DENYING A CERTIFICATE OF APPEALABILITY, CERTIFYING THAT AN
APPEAL WOULD NOT BE TAKEN IN GOOD FAITH, AND DENYING LEAVE TO
PROCEED IN FORMA PAUPERIS ON APPEAL
L. PARKER UNITED STATES DISTRICT JUDGE.
Demarcus Rone filed a letter requesting relief under
Rehaif v. United States, 139 S.Ct. 2191 (2019), and
United States v. Davis, 139 S.Ct. 2319 (2019), which
the Court construed as a pro se motion under 28 U.S.C. §
2255 to vacate, set aside, or correct sentence by a person in
federal custody (“§ 2255 Motion”). (ECF No.
1-2.) On October 7, 2019, the Court ordered Movant to file an
amended motion on the official form within twenty-eight (28)
days. (ECF No. 3 at PageID 10.) The order provided further
that “[f]ailure to timely comply with this order will
lead to dismissal of this action without prejudice under
Fed.R.Civ.P. 41(b) based on Movant's failure to
prosecute.” (Id.) Movant requested an
extension of time until December 5, 2019, to file the amended
motion on the official form. (ECF Nos. 5 & 6.)
date, however, Movant has failed to file any amended motion.
He has therefore failed to comply with the Court's order,
and the time for him to comply has expired. The Court thus
DISMISSES Movant's § 2255 Motion
without prejudice for failure to prosecute under Rule 41(b).
U.S.C. § 2253(a) requires the district court to evaluate
the appealability of its decision denying a § 2255
motion and to issue a certificate of appealability
(“COA”) “only if the applicant has made a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); see Fed.
R. App. P. 22(b). No. § 2255 movant may appeal without
must indicate the specific issue or issues that satisfy the
required showing. 28 U.S.C. §§ 2253(c)(2) &
(3). A “substantial showing” is made when the
movant 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, 336 (2003)
(internal quotation marks omitted); see Henley v.
Bell, 308 Fed.Appx. 989, 990 (6th Cir. 2009) (per
curiam) (same). A COA does not require a showing that the
appeal will succeed. Miller-El, 537 U.S. at 337;
Caldwell v. Lewis, 414 Fed.Appx. 809, 814-15 (6th
Cir. 2011) (same). Courts should not issue a COA as a matter
of course. Bradley v. Birkett, 156 Fed.Appx. 771,
773 (6th Cir. 2005).
can be no question that Movant has failed to prosecute this
matter. Because any appeal by Movant on the issues raised
does not deserve attention, the Court DENIES
a certificate of appealability.
Sixth Circuit has held that the Prison Litigation Reform Act
of 1995, 28 U.S.C. §§ 1915(a)-(b), does not apply
to appeals of orders denying § 2255 motions. Kincade
v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997). Rather,
to appeal in forma pauperis in a § 2255 case, and
thereby avoid the appellate filing fee required by 28 U.S.C.
§§ 1913 and 1917, the prisoner must obtain pauper
status pursuant to Fed. R. App. P. 24(a). Kincade,
117 F.3d at 952. Rule 24(a) provides that 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)(1). However, Rule 24(a) also provides that if
the district court certifies that an appeal would not be
taken in good faith, or otherwise denies leave to appeal in
forma pauperis, the prisoner must file his motion to proceed
in forma pauperis in the appellate court. See Fed. R. App. P.
case, for the same reasons the Court denies a certificate of
appealability, the Court finds that any appeal would not be
taken in good faith. The Court therefore
CERTIFIES, under Federal Rule of Appellate
Procedure 24(a), that any appeal in this matter would not be
taken in good faith. Accordingly, the Court
DENIES leave to appeal in forma
 Rone is a federal prisoner, Bureau of
Prisons register number 14915-010. The federal government is
currently housing him at the Federal Correctional Institute
in Forrest City, Arkansas.
 If Movant files a notice of appeal, he
must also pay the full $505 appellate filing fee or file a
motion to proceed in forma pauperis and supporting affidavit
in the Sixth ...