Johnson v. Commonwealth of Kentucky

3:11-cv-00068 | E.D. Ky. | Oct 31, 2011

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY

AT FRANKFORT CIVIL ACTION NO. 11-68-ART-JGW JUAN JOHNSON PETITIONER V. COMMONWEALTH OF KENTUCKY RESPONDENT

REPORT AND RECOMMENDATION On September 30, 2011 petitioner submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Doc. 1. Petitioner failed to pay the required $5.00 filing fee or to submit a motion to proceed in forma pauperis. Thus, on October 5, 2011 the Court issued an order directing the Clerk of Court to send petitioner the appropriate paperwork to proceed in forma pauperis and granting petitioner twenty days to either pay the filing fee or to submit a motion to proceed in forma pauperis. Doc. 2.

The twenty day period the Court gave petitioner to either pay the filing fee or to submit a motion to proceed in forma pauperis has elapsed without petitioner having taken any action. “Where a habeas petitioner has failed to pay the filing fee, failed to move to proceed in forma pauperis , and has ignored a deficiency order from the Court, the proper remedy is to dismiss the petition without prejudice.” Harris v. Crews , 2010 WL 5139237, at *1 (E.D.Ky. Oct. 12, 2010).

Accordingly, it is RECOMMENDED : The petition for writ of habeas corpus [Doc. 1] should be dismissed without prejudice . Particularized objections to this Report and Recommendation must be filed with the

Clerk of Court within fourteen (14) days of the date of service or further appeal is waived. Fed. R. Civ. P. 72(b)(2); see also United States v. Sullivan , 431 F.3d 976" date_filed="2005-12-20" court="6th Cir." case_name="United States v. Sullivan">431 F.3d 976, 984 (6th Cir. 2005). A

1 general objection that does not “specify the issues of contention” is not sufficient to satisfy the requirement of a written and specific objection. Miller v. Currie , 50 F.3d 373" date_filed="1995-03-22" court="6th Cir." case_name="Barbara Miller v. Richard Currie Doris Currie Todd Hamilton Noll Brad Towns Health Care">50 F.3d 373, 380 (6th Cir. 1995) (citing Howard v. Secretary of HHS , 932 F.2d 505" date_filed="1991-05-06" court="6th Cir." case_name="Eloise HOWARD, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee">932 F.2d 505, 508-09 (6th Cir. 1991)). Poorly drafted objections, general objections, or objections that require a judge’s interpretation should be afforded no effect and are insufficient to preserve the right of appeal. Howard , 932 F.2d at 509. A party may respond to another party’s objections within fourteen days of being served with a copy of those objections. Fed. R. Civ. P. 72(b)(2).

This the 31 st day of October, 2011. 2