United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE.
an Alabama prison inmate proceeding pro se, filed a
petition under 28 U.S.C. § 2254 (Doc. 4). This action,
which has been referred to the undersigned pursuant to 28
U.S.C. § 636(b)(1)(B), Local Rule 72(a)(1), and the
standing order of general reference, is before the Court for
Petitioner's failure to prosecute and to obey the
September 6, 2017, the Court ordered Petitioner to file a
reply showing cause why his habeas petition should not be
dismissed for the reasons stated in the Respondent's
answer by October 26, 2017 (Doc. 12). The order was mailed to
Petitioner at Mobile Metro Jail, which is the address that
Petitioner provided. On September 18, 2017, the Order was
returned as undeliverable (Doc. 13). Petitioner has not
advised the Court of a change of address, and the Court has
been unable to locate a current address for him. Due to this
failure, the Court construes the lack of response as an
indication that Petitioner is no longer interested in
proceeding with this action.
Petitioner's failure to comply with the Court's order
and to prosecute this action, and upon consideration of the
alternatives that are available to the Court, it is
recommended that this action be dismissed without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure as no other lesser sanction will suffice. Link
v. Wabash R. R., 370 U.S. 626, 630, 82 S.Ct. 1386, 8
L.Ed.2d 734 (1962) (interpreting Rule 41(b) not to restrict
the court's inherent authority to dismiss sua
sponte an action for lack of prosecution); World
Thrust Films, Inc. v. International Family Entertainment,
Inc., 41 F.3d 1454, 1456-57 (11th Cir. 1995); Mingo
v. Sugar Cane Growers Co-op, 864 F.2d 101, 102 (11th
Cir. 1989); Goforth v. Owens, 766 F.2d 1533, 1535
(11th Cir. 1983); Jones v. Graham, 709 F.2d 1457,
1458 (11th Cir. 1983). Accord Chambers v. NASCO,
Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991)
(ruling that federal courts' inherent power to manage
their own proceedings authorized the imposition of
attorney's fees and related expenses as a sanction);
Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545-46
(11th Cir. 1993)(finding that the court's inherent power
to manage actions before it permitted the imposition of
fines), cert. denied, 510 U.S. 863, 114 S.Ct. 181,
126 L.Ed.2d 140 (1993).
to Rule 11(a) of the Rules Governing § 2254 Cases,
“[t]he district court must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant.” Rule 11(a) of the Rules Governing 254 Cases
(December 1, 2009). A certificate of appealability
(“COA”) may issue only where “the applicant
has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253 (c)(2).
When a habeas petition is being dismissed on procedural
grounds, such as in the instant case, without reaching the
merits of the underlying constitutional claims, “a COA
should issue [only] when the prisoner shows . . . 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.” Slack v McDaniel. 59 U.S.
473, 484 (2000); see Miller-El v Cockrell, 537 U.S.
322, 336 (2003) (“Under the controlling standard, a
petitioner must ‘sho[w] 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.”'”).
Inasmuch as Petitioner has failed to comply with the
Court's orders and to prosecute this action, a reasonable
jurist could not conclude either that this Court is in error
in dismissing the instant petition or that Petitioner should
be allowed to proceed further, See Slack, 529 U.S.
at 484 (“Where a plain procedural bar is present and
the district court is correct to invoke it to dispose of the
case, a reasonable jurist could not conclude either that the
district court erred in dismissing the petition or that the
petitioner should be allowed to proceed further.”).
Accordingly, the undersigned recommends that the Court
conclude that no reasonable jurist could find it debatable
whether the Petitioner's petition should be dismissed,
thus, he is not entitled to a certificate of appealabilty.
reasons set forth above, it is hereby
RECOMMENDED that the Petitioner's
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 be DISMISSED without prejudice,
and that no Certificate of Appealability should issue.
attached sheet contains important information regarding
objections to this Report and Recommendation.
of Right to File Objections
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. Ala. L.R. 72(c). In order to be specific, an
objection must identify the specific finding or
recommendation to which objection is made, state the basis
for the objection, and specify the place in the Magistrate
Judge's report and recommendation ...