IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION ACIE SMITH PETITIONER

V. NO: 4:20CV00480 DPM/PSH

STATE OF ARKANSAS, JEFFERSON COUNTY RESPONDENTS PROPOSED FINDINGS AND RECOMMENDATION

INSTRUCTIONS The following Proposed Recommendation has been sent to Chief United States District Judge D. P. Marshall Jr. 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.

DISPOSITION Petitioner Acie Smith (“Smith”), while an inmate in state custody, filed a petition for emergency writ of habeas corpus on May 6, 2020. Docket entry no. 1. On

June 3, 2020, the Court ordered Smith to submit either the $5 filing fee or a properly 1 completed in forma pauperis application on or before July 3, 2020. Docket entry no. 2. In the order, the Court notified Smith of his responsibility to comply with Local

Rule 5.5, which requires him to prosecute his case diligently and respond to communication from the Court. Smith was specifically informed that failure to comply with the Order would result in the recommended dismissal of his case without

prejudice. Id. An application to proceed in forma pauperis was mailed to Smith when the June 3 order was entered. On August 3, 2020, the Court entered an order noting that Smith had not

submitted an application to proceed in forma pauperis or otherwise responded to the June 3 order. Docket entry no. 3. The Court extended Smith’s deadline for submitting his $5 filing fee or a properly completed in forma pauperis application to September 4, 2020.

Smith has not paid the $5 filing fee or submitted an application to proceed in forma pauperis, and he has not otherwise responded to the Court’s June 3 and August 3 Orders. Additionally, the June 3 and August 3 Orders have not been returned as

undeliverable, and Smith has not filed notice of a change of address. Under these circumstances, the Court concludes that Smith’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 orders. See Miller v. Benson,

(8th Cir. 1995) (District courts 2 have inherent power to dismiss sua sponte case for failure to prosecute, and exercise of that power is reviewed for abuse of discretion). This Court therefore recommends that Smith’s petition for writ of habeas

corpus be dismissed without prejudice. Pursuant to

and Rule 11 of the Rules Governing Section 2554 Cases in the United States District Court, the Court must determine whether to 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.

(c)(1)-(2). The Court finds no issue

on which petitioner has made a substantial showing of a denial of a constitutional right. Thus, we recommend the certificate of appealability be denied. IT IS SO ORDERED this 14th day of September, 2020.

UNITED STATES MAGISTRATE JUDGE