United States District Court, D. Montana, Missoula Division
FINDINGS and RECOMMENDATIONS OF UNITED STATES
Jeremiah C. Lynch United States Magistrate Judge
case comes before the Court on Petitioner Clayton
Russell's application for writ of habeas corpus under 28
U.S.C. § 2254. Russell is a state prisoner proceeding
March 13, 2018, following a review of Russell's filings,
this Court determined Russell needed to provide additional
information related to the nature of his claims and the
factual basis underlying them. (Doc. 3 at 1). Russell was
instructed what type of supplemental information the Court
was seeking and was provided with an Amended Petition form to
complete. Id. at 1-2. Russell was also advised that
he would need to complete the Court's standard
application to proceed in forma pauperis. Id. at 2.
Russell was given until April 28, 2018, to complete and file
the forms. Id. To date, Russell has failed to comply
with this Court's show cause order of March 13, 2018, by
filing an amended petition, requesting an extension of time
to do so, or otherwise responding.
Motion to proceed in forma pauperis
there is no reason to delay this matter further, this Court
will construe Russell's "Motion to Waive Filing
Fee" as a motion to proceed in forma pauperis.
Russell's motion (Doc. 2) will be GRANTED.
U.S.C. § 2254 petition
action should be dismissed based upon Russell's failure
to comply with the Court's order and/or for failure to
prosecute. See Fed.R.Civ.P. 41(b); Link v. Wabash
Railroad Co., 370 U.S. 626, 629-30 (1962);
Pagtalunan v. Galaza, 291 F.3d 641-45 (9*01.2002).
reaching this determination, the Court has weighed the
relevant factors: "(1) the public's interest in
expeditious resolution of litigation; (2) the court's
need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of
cases on their merits; and (5) the availability of less
drastic sanctions." Carey v. King, 856 F.2d
1439 (9th Cir. 1988); see also Pagtalunan, 291
F.3d at 642.
Certificate of Appealability
district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant." Rule 11(a), Rules governing § 2254
Proceedings. A COA should issue as to those claims on which a
petitioner makes a "substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
The standard is satisfied if "jurists of reason could
disagree with the district court's resolution of [the]
constitutional claims" or "conclude the issues
presented are adequate to deserve encouragement to proceed
further." Miller-El v. Cockrell, 537 U.S. 322,
327 (2003) (citing Slack v. McDaniel, 529 U.S. 473,
484 (2000)). Where a claim is dismissed on procedural
grounds, the court must also decide whether "jurists of
reason would find it debatable whether the district court was
correct in its procedural ruling." Gonzalez v.
Thaler, 565 U.S. 134, 140-41 (2012) (quoting Slack
v. McDaniel, 529 U.S. 473, 484 (2000)).
claims Russell attempts to advance do not appear to make a
substantial showing that he was deprived of a constitutional
right. Further, Russell has not complied with this
Court's order to explain or clarify his claims. No.
reasonable jurist would suggest the Court go forward with the
case without Russell's participation. A certificate of
appealability should be denied because reasonable jurists
would find no reason to encourage further proceedings.
on the foregoing, the Court enters the following:
Motion to Waive Filing Fee/proceed in forma pauperis (Doc. 2)
is GRANTED. The Clerk of Court ...