Opinion
Civil Action No. 12-cv-02271-BNB
10-23-2012
JAMES MAXWELL WORTHINGTON BERESTOFF, Applicant, v. WARDEN T. K. COZZA-RHODES, Respondent.
ORDER OF DISMISSAL
Applicant, James Maxwell Worthington Berestoff, was a prisoner in the custody of the Federal Bureau of Prisons (BOP) incarcerated at the Federal Correctional Institution in Florence, Colorado, when he initiated this action by filing pro se a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3) and an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) seeking his release to community corrections. According to the inmate locator on the BOP website, www.bop.gov, Mr. Berestoff has been released to community corrections in Seattle, Washington. Mr. Berestoff has not notified the Court of his current address.
On September 4, 2012, Magistrate Judge Boyd N. Boland entered an order (ECF No. 4) granting Mr. Berestoff leave to proceed pursuant to 28 U.S.C. § 1915 and directing him to file an amended application that sought relief and asserted claims appropriate in a habeas corpus action, was legible in compliance with Rule 10.1 of the Local Rules of Practice for this Court and on the Court-approved § 2241 form, sued the proper Respondent, and complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. On September 11, 2012, Mr. Berestoff submitted an amended application (ECF No. 5) that failed to comply with all the directives of the September 4 order. Therefore, on September 12, 2012, Magistrate Judge Boland entered a minute order (ECF No. 6) allowing Mr. Berestoff thirty days in which to resubmit on the Court-approved form an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that complied with the September 12 minute order and all the directives of the September 4 order. The minute order warned Mr. Berestoff that failure to do so within the time allowed would result in the dismissal of the instant action.
Mr. Berestoff has failed within the time allowed to comply with the September 12 minute order and all the directives of the September 4 order, or otherwise to communicate with the Court in any way. Therefore, the § 2241 application will be denied and the action dismissed without prejudice for failure to comply with the September 4 and 12 orders, and for Mr. Berestoff's failure to prosecute.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be 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. Berestoff files a notice of appeal he must also 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 habeas corpus application pursuant to 28 U.S.C. § 2241 (ECF No. 1) is denied and the action dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for the failure of Applicant, James Maxwell Worthington Berestoff, within the time allowed, to comply with the minute order of September 12, 2012, and all the directives of the order of September 4, 2012, or otherwise to communicate with the Court in any way. It is
FURTHER ORDERED that the clerk of the Court mail a copy of this order to Mr. Berestoff at the Federal Correctional Institution in Florence, Colorado, the address he has provided to the Court. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 23rd day of October, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court