Rainey v. Doe

• Court: District Court, E.D. Arkansas
• Decided: October 8, 2024
• Docket: 4:24-cv-00682
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION

KENNETH RAY RAINEY PETITIONER

No. 4:24-cv-00682 BRW/PSH

SHERIFF, Pulaski County, Arkansas RESPONDENT

PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS

The following Recommendation has been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this

Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may

waive the right to appeal questions of fact.

1 DISPOSITION

Petitioner Kenneth Ray Rainey (“Rainey”) filed a petition for writ of habeas corpus on August 12, 2024. The Court subsequently ordered Rainey to submit either the $5 filing fee or a properly completed in forma pauperis application on or before September 20, 2024. Doc. No. 3. Citing Local Rule 5.5, the Court informed Rainey

that failure to comply with the Court’s directions would result in the recommended dismissal of the case without prejudice. Rainey has not responded to the Court’s August 20 Order. Under these

circumstances, the Court concludes that Rainey’s petition should be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2) and failure to respond to the Court’s Order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995)

(District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and exercise of that power is reviewed for abuse of discretion). Therefore, the Court recommends that Rainey’s petition for writ of habeas

corpus be dismissed without prejudice for failure to comply with Local Rule 5.5(c)(2) and failure to respond to the Court’s Order. Pursuant to 28 U.S.C. § 2253 and Rule 11 of the Rules Governing Section

2554 Cases in the United States District Court, the Court must determine whether to

2 issue a certificate of appealability in the final order. In § 2254 cases, a certificate of appealability may issue only if the applicant has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(1)-(2). The Court finds no issue

on which petitioner has made a substantial showing of a denial of a constitutional right. Thus, the Court recommends that the certificate of appealability be denied.

IT IS SO RECOMMENDED this 8th day of October, 2024.

UNITED STATES MAGI RATE JUDGE