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Brewer v. Kelley

United States District Court, E.D. Arkansas, Jonesboro Division

March 13, 2018

NICKELAS NECESSITY BREWER ADC #116152 PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT

          RECOMMENDED DISPOSITION

         The following Recommended Disposition (“Recommendation”) has been sent to Chief United States District Judge Brian S. Miller. 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 the entry of this Recommendation. The failure to timely file objections may result in waiver of the right to appeal questions of fact.

         I. Discussion

         On November 6, 2017, Nickelas Necessity Brewer (“Brewer”), an Arkansas Department of Correction inmate incarcerated in the Bowie County Correctional Center in Texarkana, Texas, filed this Petition for a Writ of Habeas Corpus in the United States District Court for the Eastern District of Texas. Doc. 1. On December 28, 2017, the case was transferred to this Court.[1] Doc. 8. Because Brewer had not paid the $5.00 filing fee or filed a request to proceed in forma pauperis, the Court did not order service of the Petition.[2]

         Instead, on January 5, 2018, the Court entered an Order giving Brewer until February 5, 2018, to either: (1) pay the $5.00 filing fee in full; or (2) file a properly completed Application to Proceed In Forma Pauperis. Doc. 9 at 2. The Court advised Brewer that if he failed “to timely and properly comply with this Order, ” his habeas action would “be dismissed, without prejudice, pursuant to Local Rule 5.5(c)(2).”[3] Id.

         Brewer failed to respond to the Court's January 5, 2018 Order.

         On February 20, 2018, the Court entered a second Order giving Brewer an additional opportunity to comply with the Court's January 5 Order. Doc. 10. The Court's February 20 Order established a new deadline of March 6, 2018, for Brewer to comply.

         Brewer failed to respond to the Court's February 20 Order.[4]

         It is now March 13, 2018, and Brewer has not filed anything with this Court since his case was transferred here on December 28, 2017. He has ignored two Court Orders and deadlines directing him to either pay the filing fee or submit an Application to Proceed In Forma Pauperis. Thus, the record makes it clear that Brewer has violated his obligations under Local Rule 5.5(c)(2), ignored two Court Orders, and has failed to prosecute this action diligently.[5]

         II. Conclusion

         IT IS THEREFORE RECOMMENDED THAT this Petition for Writ of Habeas Corpus, Doc. 1, be DISMISSED WITHOUT PREJUDICE pursuant to Fed.R.Civ.P. 41(b) and Local Rule 5.5(c)(2).

         IT IS FURTHER RECOMMENDED THAT a Certificate of Appealability be DENIED. See 28 U.S.C. § 2253(c)(1)-(2); § 2254 Rule 11(a).

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Notes:

[1] In his Petition, Brewer alleged that the ADC had improperly transferred him to the Bowie County Correctional Center. Doc. 1. The Court in the Eastern District of Texas concluded that, because Brewer's incarceration in Texas was due to an Arkansas state court conviction and not the result of any process issued by a Texas state court, the Petition would be more appropriately adjudicated in the Eastern ...


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