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Smiley v. Gordy

United States District Court, M.D. Alabama, Northern Division

September 4, 2019

DARREN LAVON SMILEY, Petitioner,
v.
CHRISTOPHER GORDY, Warden, et al., Respondents.

          OPINION AND ORDER

          MYRON H. THOMPSON UNITED STATES DISTRICT JUDGE

         This habeas case is before the court on petitioner Darren Lavon Smiley's motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(4). The motion will be denied.

         I.

         The events leading up to filing of the motion are as follows:

         March 28, 2019: 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 challenging his 2007 Crenshaw County convictions for robbery and first-degree sodomy.

         April 2: The magistrate judge entered an order directing Smiley either to submit the $ 5.00 filing fee by April 19 or to file by that date the necessary affidavit to proceed in forma pauperis.[1] The magistrate judge specifically cautioned Smiley that his failure to comply with the court's order would result in a recommendation that his case be dismissed.

         April 15: The magistrate judge entered an order extending, from April 19 to and including May 6, the time for Smiley to submit the filing fee or to apply to proceed in forma pauperis. The magistrate judge again cautioned Smiley that his failure to comply with the court's orders would result in a recommendation that his case be dismissed.

         May 14: After the requisite time had passed, the magistrate judge entered an order giving Smiley another extension, this time to and including June 4, to submit the filing fee or to apply to proceed in forma pauperis.[2] Once again, the magistrate judge cautioned Smiley that his failure to comply with the court's orders would result in a recommendation that his case be dismissed.

         May 28: The court received from Smiley a document styled as a “responsive pleading” to the magistrate judge's May 14 order. Response (doc. no. 8). In this document, he asserted that he did not wish to proceed in forma pauperis in his habeas action; that he did not currently have $ 5.00 for the filing fee available in his prison account; and that he gave 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.

         June 11: The magistrate judge entered a recommendation that Smiley's case be dismissed without prejudice. The magistrate judge found that the representations in the May 28 document failed to comply with the directives of the previous orders that Smiley either submit the filing fee or apply to proceed in forma pauperis.

         June 18: Smiley filed objections to the magistrate judge's recommendation.

         August 1: The court overruled Smiley's objections, adopted the magistrate judge's recommendation, and entered a judgment dismissing Smiley's case without prejudice.

         August 30: Smiley filed the pending motion ...


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