Opinion
Civil Action No. 12-cv-01332-BNB
07-05-2012
EDWIN MARK ACKERMAN, Applicant, v. PEOPLE OF THE STATE OF COLORADO, Respondent.
ORDER OF DISMISSAL
Applicant, Edwin Mark Ackerman, is in the custody of the Colorado Department of Corrections (DOC) and currently is incarcerated at the Centennial Correctional Facility in Cañon City, Colorado. Originally, Mr. Ackerman filed a pleading titled "Motion to Remove 2010CA2637 to U.S. District Court." The Clerk of the Court entered the Motion as a notice of removal from state court. See People of the State of Colo. V. Ackerman, No. 11-cr-00239-CMA (D. Colo. May 21, 2012). District Judge Christine M. Arguello entered an order on May 21, 2012, that construed the motion as more properly filed pursuant to 28 U.S.C. § 2254, closed the removal action, directed the Clerk of the Court to open a separate action pursuant to 28 U.S.C. § 2254, and placed the action on the pro se docket for an initial review.
As part of the initial review, Magistrate Judge Boyd N. Boland entered an order on May 22, 2012, and instructed Mr. Ackerman to cure certain deficiencies. Specifically, Magistrate Judge Boland directed Mr. Ackerman to submit his claims and his 28 U.S.C. § 1915 request on the proper Court-Approved forms. Magistrate Judge Boland warned Mr. Ackerman that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On May 23, 2012, Mr. Ackerman filed a pleading titled "Writ of Habeas Corpus Motion Seeking the Detainer Lodged Against the Defendant to be Rescinded" and a "Motion to Proceed In Forma Pauperis and Affidavit of Indigency." The Court will not consider the documents because Mr. Ackerman has failed to submit his claims and his request to proceed in forma pauperis on Court-approved forms.
In accordance with the United States District Court for the District of Colorado Local Rules of Practice, Local Rule 8.1 A., Mr. Ackerman is required to use Court-approved forms when filing an action in this Court. Therefore, the action will be dismissed without prejudice for failure to comply with all noted deficiencies in the May 22, 2012 Order.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not taken in good faith, and, therefore, in forma pauperis status will be denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Ackerman files a notice of appeal he must pay the full $455.00 appellate filing fee or file a motion to proceed in forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to cure the deficiencies and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma paupers on appeal is denied. It is
FURTHER ORDERED that no certificate of appealability shall issue because Mr. Ackerman has not made a substantial showing that jurists of reason would find it debatable whether the procedural ruling is correct and whether the underlying claim has constitutional merit.
DATED at Denver, Colorado, this 5th day of July, 2012.
BY THE COURT:
____________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court