Opinion
Civil Action No. 12-cv-02675-BNB
11-16-2012
MANUEL DEPINEDA, Applicant, v. TOM CLEMENTS, Warden of All C.D.O.C., and JANICE B. DAVIDSON, Chief Judge Colo. Ct. App., Respondents.
ORDER OF DISMISSAL
Applicant, Manuel Depineda, initiated this action by filing pro se an application for a writ of habeas corpus (ECF No. 1). On October 10, 2012, Magistrate Judge Boyd N. Boland entered an order directing Mr. Depineda to cure certain deficiencies if he wished to pursue his claims in this action. More specifically, Magistrate Judge Boland ordered Mr. Depineda either to pay the $5.00 filing fee or to file a properly supported motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Depineda was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
Mr. Depineda has filed various documents in this action after being directed to cure the deficiencies (see ECF Nos. 4-8), but he has not filed a motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Depineda asserts in two filings that he mailed the $5.00 filing fee to the Court (see ECF No. 5 at 1; ECF No. 7 at 1), and he attaches to another filing a money order receipt (see ECF No. 8), but the Court's docketing records do not indicate that the filing fee for this action has been paid and the Court has no other record of receiving any payment from Mr. Depineda relevant to this action. Therefore, the Court finds that Mr. Depineda has failed within the time allowed to cure the deficiencies as directed and the action will be dismissed for that reason.
Furthermore, 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 also must 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 habeas corpus application is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Depineda failed to comply with a court order. It is
FURTHER ORDERED that the pending motions (ECF Nos. 4, 6, & 7) are denied as moot. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant 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 without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 16th day of November, 2012.
BY THE COURT:
______________________
LEWIS T. BABCOCK, Senior Judge
United States District Court