Opinion
Civil Action No. 12-cv-2298-BNB
11-08-2012
ELLERY EMERT, Applicant, v. GURLEY, Judge, Mesa County District Court, CASEBOLT, Judge, Colorado Court of Appeals, Respondents.
ORDER OF DISMISSAL
Applicant, Ellery Emert, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and 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).
In an August 29, 2012 Order, Magistrate Judge Boyd N. Boland directed Mr. Emert to cure certain deficiencies in this action. Specifically, Applicant was ordered to submit a certified copy of his inmate account statement showing the current balance in his prison account. In the alternative, he was instructed to pay the $ 5.00 filing fee. Mr. Emert was further directed to file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on the court-approved form and to name the proper Respondent.
On September 24, 2012, Mr. Emert submitted his inmate account statement. He was thereafter granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Mr. Emert also submitted another Application for a Writ of Habeas Corpus (ECF No. 5). However, the second application is not on the court-approved form and does not name the proper Respondent. Accordingly, in a September 27, 2012 Order, the Court granted Plaintiff one final opportunity to submit his application on the court-approved form and to name the proper Respondent. Mr. Emert was advised in the September 27 Order that failure to file an amended Application in compliance with the court's order would result in dismissal of the action without further notice.
Mr. Emert has now failed to file an amended application in compliance with the Court's September 27 Order. Indeed, he has not communicated with the Court at all since September 24, 2012. As such, this action will be dismissed.
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. Emert 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 this action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to comply with the August 29, 2012 Order Directing Applicant to Cure Deficiencies and the September 27, 2012 Order Directing Applicant to File an Amended Application. 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. Emert 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. Emert may file a motion in the Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 8th day of November, 2012.
BY THE COURT:
______________________
LEWIS T. BABCOCK, Senior Judge
United States District Court