McVay v. Walker
- Laura Swain
- 1:22-cv-06572
- U.S. District Court · Southern District of New York
- 1
In McVay v. Walker, Judge Swain denied Jeffrey McVay’s petition without prejudice after he failed to file the required amended petition.
The ruling affected Jeffrey McVay’s petition. The court directed entry of judgment and denied fee-free status for any appeal.
What happened
In McVay v. Walker, the court had ordered Jeffrey McVay to file an amended petition within 60 days and warned that failing to do so would lead to dismissal.
McVay did not file an amended petition. The court therefore denied his petition without prejudice. The petition had been filed without paying the filing fee under a federal rule allowing that procedure.
Judge Laura Taylor Swain directed the Clerk to enter judgment, declined to issue a certificate allowing an appeal, and denied fee-free status for any appeal because the appeal would not be taken in good faith.
The detailed version
- McVay v. Walker · No. 1:22-cv-06572
- Laura Swain
- Jan. 4, 2023
Background
By an order dated October 17, 2022, the court directed Petitioner Jeffrey McVay to file an amended petition within 60 days. The order warned that failure to comply would result in dismissal. McVay did not file an amended petition.
Ruling
The court’s order is titled an Order of Dismissal, but its operative language states that the petition, which was filed without paying the filing fee under 28 U.S.C. § 1915(a)(1), was “denied without prejudice.” The opinion does not address the underlying merits of the petition.
Because the petition did not make a substantial showing that a constitutional right had been denied, the court stated that no certificate of appealability would issue. A certificate of appealability is required for certain appeals involving a petition challenging unlawful detention or custody. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied fee-free status for purposes of an appeal. The Clerk was directed to enter judgment.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.