Hood v. Perry

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

) EDWARD HOOD, JR., ) ) Petitioner, ) ) v. ) Case No. 1:17-cv-01150-STA-jay ) GRADY PERRY, ) ) Respondent. ) )

ORDER DENYING SECOND AMENDED PETITION, DENYING MOTION TO DISMISS AS MOOT, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

On February 8, 20121, the Court took under advisement Respondent Grady Perry’s motion to dismiss the Second Amended Petition as untimely, and directed Petitioner Edward Hood, Jr., to show cause within twenty-one days why the claims set forth in the pleading should not be denied as non-cognizable and without merit. (ECF No. 32.) Petitioner has not responded to the show- cause order and the time for doing so has passed. Therefore, for the reasons discussed in the February 8, 2021 order, the Second Amended Petition is DENIED. The motion to dismiss the pleading as untimely (ECF No. 28) is DENIED as moot. Judgment shall be entered for Respondent. APPEAL ISSUES A § 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, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484). In this case, reasonable jurists would not debate the correctness of the Court’s decision to deny the Second Amended Petition. Because any appeal by Petitioner does not deserve attention, the Court DENIES a certificate of appealability. Pursuant 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. Id.

In this 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.1 IT IS SO ORDERED.

s/ S. Thomas Anderson S. THOMAS ANDERSON CHIEF UNITED STATES DISTRICT JUDGE

Date: March 4, 2021

1 If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee or file a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of Appeals within thirty days. 3