Moore v. Stephenson ( 2019 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LAMON MOORE, Plaintiff, Case No. 17-cv-13440 Hon. Matthew F. Leitman v. SCOTT STEPHENSON, et al., Defendant. __________________________________________________________________/ ORDER (1) VACATING ORDER TO SHOW CAUSE (ECF NO. 6), (2) DISMISSING PETITION FOR WRIT OF HABEAS CORPUS (ECF NO. 1), (3) DENYING A CERTIFICATE OF APPEALABILITY, AND (4) DENYING PERMISSION TO APPEAL IN FORMA PAUPERIS On October 17, 2017, Petitioner Lamon Moore filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2441 (the “Petition”). (See Pet., ECF No. 1.) At the time Moore filed the Petition, he was also a defendant in a criminal proceeding in this Court. See United States v. Moore, E.D. Mich. Case No. 17-cr-20019 (the “Criminal Proceeding”). The Petition relates to issues that arose in the Criminal Proceeding. After Moore filed the Petition, he pleaded guilty in the Criminal Proceeding to one count of bank robbery pursuant to a Rule 11 plea agreement. Moore’s guilty plea appears to have resolved the issues raised in the Petition. Accordingly, on June 5, 2019, the Court entered an order that required Moore to show cause, in writing, within forty-five days, why it should not dismiss the Petition. (See Order, ECF No. 6.) The Court warned Moore that his “failure to comply with this Order will result in the dismissal of his petition.” (Id., PageID.22.) Moore has not filed any response to the Court’s June 5, 2019, show cause order. Therefore, because Moore has not filed any response to the show cause order, and because, for all of the reasons stated in the show cause order, it appears that Moore’s guilty plea resolves the claims raised in the Petition, the Petition is DISMISSED WITHOUT PREJUDICE. In addition, Moore is also not entitled to a certificate of appealability with respect to this order because he has not “made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Nor has he shown that reasonable jurists would find the Court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). Finally, Moore is not entitled to proceed in forma pauperis on appeal because an appeal of this order cannot be taken in good faith. See 28 U.S.C. § 1915(a)(3); Fed. R. App. 24(a). Accordingly, for all of the reasons stated above, IT IS HEREBY ORDERED that:  The Court’s June 5, 2019, order to show cause (ECF No. 6.) is VACATED;  Moore’s petition for a writ of habeas corpus (ECF No. 1) is DISMISSED WITHOUT PREJUDICE;  The Court DENIES Moore a certificate of appealability; and  The Court DENIES Moore permission to proceed in forma pauperis on appeal. s/Matthew F. Leitman MATTHEW F. LEITMAN UNITED STATES DISTRICT JUDGE Dated: October 24, 2019 I hereby certify that a copy of the foregoing document was served upon the parties and/or counsel of record on October 24, 2019, by electronic means and/or ordinary mail. s/Holly A. Monda Case Manager (810) 341-9764