Opinion
Civil Action No. 11-cv-03345-BNB
02-02-2012
ADRIAN HILL, Applicant, v. EL PASO COUNTY SHERIFF TERRY MAKETA, Respondent.
ORDER OF DISMISSAL
Applicant, Adrian Hill, was incarcerated at the El Paso County Criminal Justice Center in Colorado Springs, Colorado, when he initiated this action by filing pro se a document titled "Writ of Habeas Corpus for Prisoner."
On December 28, 2011, Magistrate Judge Boyd N. Boland ordered Mr. Hill to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Boland ordered Mr. Hill to file on the proper form an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Magistrate Judge Boland also ordered Mr. Hill 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. Rule 3(a)(2) of the Rules Governing Section 2254 Cases in the United States District Courts requires such a motion. The December 28 order directed Mr. Hill to obtain the Court-approved forms for filing a § 1915 motion and affidavit and a habeas corpus application, along with the applicable instructions, at www.cod.uscourts.gov . Lastly, Mr. Hill was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On January 6, 2012, the copy of the December 28 order mailed to Mr. Hill was returned to the Court as undeliverable. Mr. Hill has failed to cure the designated deficiencies within the time allowed, notify the Court of any change of address in compliance with D.C.COLO.LCivR 10.1M, or otherwise to communicate with the Court in any way. Therefore, the application will be denied and the action dismissed without prejudice for failure to cure the deficiencies designated in the December 28 order to cure and for Mr. Hill's failure to prosecute.
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. Hill files a notice of appeal he must also pay the full $455.00 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 dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for the failure of Applicant, Adrian Hill, to cure the deficiencies designated in the December 28, 2011, order to cure, and for his failure to prosecute. 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.
DATED at Denver, Colorado, this 2nd day of February, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court