Opinion
Civil Action No. 12-cv-02339-BNB
10-15-2012
PETE SELASTINO CRUZ, Applicant, v. TOM CLEMENTS, Exec. Dir. C.D.O.C., Respondent.
ORDER OF DISMISSAL
Applicant, Pete Selastino Cruz, is in the custody of the Colorado Department of Corrections and is incarcerated currently at the Centennial Correctional Facility in Canón City, Colorado. He initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. In the Application, Mr. Cruz challenges the state trial court's imposition of a habitual offender sentence. The Court therefore has construed his allegations as arising under 28 U.S.C. § 2254. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997); see also Order Directing Applicant to Cure Deficiencies (ECF No. 4; September 4, 2012).
In a September 4, 2012 Order, Magistrate Judge Boyd N. Boland directed Mr. Cruz to correct certain deficiencies in this action. Specifically, Mr. Cruz was ordered to submit, within thirty days from the date of the Order, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr. Cruz was also directed to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Action, along with a certificate showing the current balance in his inmate trust fund account. Mr. Cruz was further advised that he could elect to pay the $5.00 filing fee, in the alternative. Magistrate Judge Boland warned Mr. Cruz in the September 4 Order that failure to comply by the court-ordered deadline would result in dismissal of the action without further notice.
Mr. Cruz has failed to submit any documents in compliance with the September 4 Order and has not paid the $5.00 filing fee. Indeed, Mr. Cruz has not communicated with the Court since he initiated this action on August 31, 2012. Therefore, the Application and action will be dismissed without prejudice.
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 Applicant files a notice of appeal he must also pay the full $455 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 Complaint and this action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with the September 4, 2012 Order Directing Applicant to Cure Deficiencies. It is
FURTHER ORDERED that no certificate of appealability will issue because jurists of reason would not debate the correctness of this procedural ruling and Mr. Cruz has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. Mr. Cruz may file a motion in the Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 15th day of October, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court