Opinion
Civil Action No. 15-cv-00336-GPG
03-27-2015
MANUEL SESARIO DEPINEDA, Applicant, v. [NO RESPONDENT NAMED], Respondent.
ORDER OF DISMISSAL
Applicant, Manuel Sesario DePineda, is a prisoner in the custody of the Colorado Department of Corrections. Mr. DePineda initiated this action by filing pro se a document (ECF No. 1) apparently challenging a state court conviction and claiming he is entitled to immediate release from prison. This habeas corpus action was commenced and, on February 18, 2015, Magistrate Judge Gordon P. Gallagher entered an order directing Mr. DePineda to cure certain deficiencies if he wished to pursue his claims. Magistrate Judge Gallagher specifically directed Mr. DePineda to file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and either to pay the $5.00 filing fee for a habeas corpus action or to file a properly supported Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. Mr. DePineda was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On March 9, 2015, Mr. DePineda filed a response (ECF No. 4) to Magistrate Judge Gallagher's February 18 order that consists of two pages of the February 18 order with handwritten annotations; a handwritten letter to the Clerk of the Court that bears a "RECEIVED" stamp dated February 13, 2015, which indicates the letter previously was submitted to the Court before this action was initiated; and a typewritten letter to the Clerk of the Court dated February 11, 2015, regarding being held in prison illegally and requesting assistance in finding an attorney.
Mr. DePineda has not cured any of the deficiencies in this action. He has not filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and he has failed either to pay the $5.00 filing fee for a habeas corpus action or to file a properly supported Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies.
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 Plaintiff files a notice of appeal he also must pay the full $505 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 Rule 41(b) of the Federal Rules of Civil Procedure because Mr. DePineda failed to cure the deficiencies as directed. 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 27th day of March, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court