Morgan v. Howard ( 2024 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION MELISSA SUE MORGAN, Petitioner, Case No. 23-cv-13123 v. Honorable Shalina D. Kumar United States District Judge JEREMY HOWARD, Respondent. OPINION AND ORDER DENYING THE APPLICATION TO PROCEED WITHOUT PREPAYMENT OF THE FILING FEE, DISMISSING THE HABEAS PETITION, AND DENYING A CERTIFICATE OF APPEALABILITY Michigan prisoner Melissa Sue Morgan, currently confined at the Huron Valley Complex in Ypsilanti, Michigan has filed a pro se petition for a writ of habeas corpus seeking relief under 28 U.S.C. § 2254 and an application to proceed in forma pauperis. ECF Nos. 1, 2. Although petitioner alleges that she lacks the funds to pay the required fees, her certificate of inmate account activity states that she had a current spendable account balance of $144.68 in her prison account as of November 28, 2023, when an administrative official certified the financial statement. ECF No. 2. The Court concludes from the financial information provided by petitioner that she has not established indigence and can pay the $5.00 filing fee for this action. Accordingly, the Court DENIES the application to proceed in forma pauperis and DISMISSES WITHOUT PREJUDICE the petition for a writ of habeas corpus. The Court is required to dismiss the case because the allegation of poverty is untrue. 28 U.S.C. § 1915(e)(2)(A). Petitioner may submit a new habeas petition with payment of the filing fee in a new case. This case will not be reopened. Before petitioner may appeal this decision, a certificate of appealability must issue. 28 U.S.C. § 2253(c)(1)(a); Fed. R. App. P. 22(b). A certificate of appealability may issue only if the petitioner makes “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When a court denies relief on the merits, the substantial showing threshold is met if the petitioner demonstrates that reasonable jurists would find the court’s assessment of the constitutional claim debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). When a court denies relief on procedural grounds, a certificate of appealability should issue if it is shown that jurists of reason would find it debatable whether the petitioner states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the court was correct in its procedural ruling. Id. Jurists of reason would not find the Court’s procedural ruling debatable. Accordingly, the Court DENIES a certificate of appealability. IT IS SO ORDERED. s/Shalina D. Kumar SHALINA D. KUMAR United States District Judge Dated: February 8, 2024