United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE.
March 28, 2019, Petitioner Darren Lavon Smiley
(“Smiley”), an Alabama inmate at the Donaldson
Correctional Facility, filed a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 appearing
to challenge his 2007 Crenshaw County convictions for robbery
and first-degree sodomy. Doc. # 1. On April 2, 2019, this
court entered an order directing Smiley to either submit the
$5.00 filing fee by April 19, 2019, or file by that same date
an appropriate affidavit in support of a motion to proceed
in forma pauperis. Doc. # 2. The court specifically
cautioned Smiley that his failure to comply with its order
would result in a recommendation that his case be dismissed.
Id. at 2.
order entered on April 15, 2019, this court extended the time
for Smiley to submit the filing fee or apply for in forma
pauperis status from April 19, 2019, to and including
May 6, 2019. Doc. # 5. The court again cautioned Smiley that
his failure to comply with its orders would result in a
recommendation that his case be dismissed. Id. at 2.
14, 2019, after the requisite time passed, the court entered
an order granting Smiley an extension to and including June
4, 2019, to submit the filing fee or apply for in forma
pauperis status. Doc. # 7. Once again, the court cautioned
Smiley that his failure to comply with its orders would
result in a recommendation that his case be dismissed.
Id. at 2.
28, 2019, the court received from Smiley a document styled as
a “responsive pleading” to the court's May
14, 2019 order. Doc. # 8. In this document, Smiley asserts
that he does not wish to proceed in forma pauperis
in this action, that he currently does not have $5.00 for the
filing fee available in his prison account, and that he gives
the court permission to withdraw $5.00 for the filing fee
“as soon as any monies are deposited in his prison
account.” Id. at 2. The representations by
Smiley in this “responsive pleading” do not
comply with the directives of the court's orders that he
either submit the filing fee or apply for in forma
requisite time (June 4, 2019) has passed, and Smiley has
still failed to comply with this court's orders by either
submitting the filing fee or filing an affidavit in support
of a motion to proceed in forma pauperis.
Consequently, this court concludes that dismissal of this
case without prejudice is appropriate. See Moon v.
Newsome, 863 F.2d 835, 837 (11th Cir. 1989) (holding
that, generally, where a litigant has been forewarned,
dismissal for failure to obey a court order is not an abuse
it is the RECOMMENDATION of the Magistrate Judge that this
case be DISMISSED without prejudice because Smiley has failed
to comply with the orders of this court that he either submit
the filing fee or file an affidavit in support of a motion to
proceed in forma pauperis.
further ORDERED that the parties shall file any objections to
this Recommendation on or before June 25, 2019. A party must
specifically identify the factual findings and legal
conclusions in the Recommendation to which objection is made;
frivolous, conclusive, or general objections will not be
considered. Failure to file written objections to the
Magistrate Judge's findings and recommendations under the
provisions of 28 U.S.C. § 636(b)(1) will bar a party
from a de novo determination by the District Court
of legal and factual issues covered in the Recommendation and
waives the right of the party to challenge on appeal the
District Court's order based on unobjected-to factual and
legal conclusions accepted or adopted by the District Court
except upon grounds of plain error or manifest injustice.
Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982);
11th Cir. R. 3-1. See Stein v. Lanning Securities,
Inc., 667 F.2d 33 (11th Cir. 1982).
 The court's order directed the
Clerk of Court to send Smiley a form for use in filing a
motion to proceed in forma pauperis. Doc. # 1 at 1.
The court also advised Smiley that his properly completed
motion to proceed in forma pauperis must include a
prison account statement from the account clerk at the
Donaldson Correctional Facility containing the account
clerk's certified statement of the balance in
Smiley's prison account when he filed his habeas
petition. Id. at 1-2.
 The court's order also directed
Smiley to file an amended § 2254 petition using the form
for filing a petition for writ of habeas corpus under 28
U.S.C. § 2254. See Doc. # 7 at 2. The court
received Smiley's amended petition on May 28, 2019. Doc.
# 9. The amended petition appears to set forth allegations of
ineffective assistance of counsel against ...