Britt v. Payne

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION J’DONTA DEL’MARCO BRITT PETITIONER

No. 4:21-cv-00648 BRW/PSH DEXTER PAYNE, Director, Arkansas Division of Correction (“ADC”) RESPONDENT

FINDINGS AND RECOMMENDATION

INSTRUCTIONS The following recommended disposition 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.

DISPOSITION Petitioner J’Donta Del’Marco Britt (“Britt”) filed his petition for writ of habeas corpus on July 21, 2021. On August 11, the Court ordered him to either submit the $5.00 filing fee or a properly completed in forma pauperis application. Britt submitted a motion for leave to proceed in forma pauperis on September 7. In an Order dated September 20, the Court denied the motion to proceed in forma pauperis and directed Britt to pay the filing fee on or before October 19. Britt was notified that failure to pay would result in a recommendation that the case be dismissed without prejudice. Docket entry no. 4.

Britt has not paid the filing fee as directed by the Court. Under these circumstances, the Court concludes and recommends that Britt’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, 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).

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 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 ORDERED this 21st day of October, 2021.

UNITED STATES MAGISTRATE JUDGE