Opinion
Civil Action No. 13-cv-00486-BNB
04-04-2013
RONALD JENNINGS FOGLE, Applicant, v. MICHAEL MILLER, Warden, Respondent.
ORDER OF DISMISSAL
Applicant, Ronald Jennings Fogle, is a prisoner in the custody of the Colorado Department of Corrections at the Crowley County Correctional Facility in Olney Springs, Colorado. Mr. Fogle initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and a letter to the Court (ECF No. 3) in which he stated that the filing fee for this habeas corpus action would be paid by his mother. On February 25, 2013, Magistrate Judge Boyd N. Boland entered an order directing Mr. Fogle to cure certain deficiencies if he wished to pursue any claims in this Court. Specifically, Magistrate Judge Boland ordered Mr. Fogle either to pay the $5.00 filing fee 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. Fogle was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
Mr. Fogle has failed to cure the deficiencies within the time allowed and has failed to respond in any way to Magistrate Judge Boland's February 25 order. The Court's docketing records also do not reflect payment of the filing fee for this action by anyone else. 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 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 (ECF No. 1) is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Fogle 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 4th day of April, 2013.
BY THE COURT:
______________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court