Newkirk v. Department Of Corrections, No. 3:2016cv00265 - Document 26 (E.D. Va. 2016)

Court Description: MEMORANDUM OPINION. See Opinion for complete details. Signed by District Judge Henry E. Hudson on 08/22/2016. Copy mailed to Petitioner.(ccol, )

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Newkirk v. Department Of Corrections Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division p AUG 2 3 2016 KENNETH NEWKIRK, 1/ CLeRK. U.S. DISTfliCT COURT Petitioner, RICHMOND. VA Civil Action No. 3:16CV265-HEH V. DIRECTOR DEPARTMENT OF CORRECTIONS, Respondent. MEMORANDUM OPINION (Dismissing 28 U.S.C § 2254 Petition Without Prejudice) Petitioner, a Virginia state prisoner proceeding pro se, submitted a 28 U.S.C. § 2254 petition. By Memorandum Order entered on July 25,2016, the Court directed Petitioner, within eleven (11) days ofthe date of entry thereof, to pay the $5.00 filing fee or explain any special circumstances that would warrant excusing payment ofthe filing fee. The Court warned Petitioner it would dismiss the action if Petitioner did not pay the filing fee or explain any special circumstances that would warrant excusing payment of the filing fee. More than eleven (11) days have elapsed since the entry ofthe July 25, 2016 Memorandum Order and Petitioner has not paid the filing fee or explained any special circumstances that would warrant excusing payment ofthe filing fee. Accordingly, the action will be dismissed without prejudice. An appeal may not be taken from the final order in a § 2254 proceeding unless a judge issues a certificate ofappealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of appealability will not issue unless a prisoner makes "a substantial showing ofthe denial Dockets.Justia.com ofa constitutional right." 28 U.S.C. §2253(c)(2). This requirement is satisfied only when "reasonable jurists could debate whether (or, for that matter, agree that) the petition shouldhave been resolved in a different manner or that the issues presented were 'adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473,484 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 &n.4 (1983)). No law or evidence suggests that Petitioner is entitled to further consideration in this matter. The Court will deny a certificate of appealability. An appropriate order will accompany this Memorandum Opinion. ^ /s/ HENRY E.HUDSON Date: Richmond, Virginia UNITED STATES DISTRICT JUDGE

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