Opinion
Civil Action No. 13-cv-00580-BNB
04-25-2013
KYLE LEE HOUSTON, Persona-Sui-Juris, a/k/a Delihue III, Hebrew Masonic Jew of the Israel Nation, Applicant, v. TOM CLEMENTS (C.D.O.C.), and DIRECTOR WILLSON, City, County D.C.J., Respondents.
ORDER OF DISMISSAL
Applicant, Kyle Lee Houston, 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). On March 20, 2013, Magistrate Judge Boyd N. Boland entered an order directing Mr. Houston to file an amended pleading that clarifies the claims he is asserting in this action. Mr. Houston was warned that the action would be dismissed without further notice if he failed to file an amended pleading within thirty days.
On March 28, 2013, the copy of Magistrate Judge Boland's March 20 order that was mailed to Mr. Houston at the Denver County Jail address he provided was returned to the Court undelivered. The returned envelope (ECF No. 7) bears stamps that read "RELEASED" and "RETURN TO SENDER, ATTEMPTED - NOT KNOWN, UNABLE TO FORWARD."
Pursuant to Rule 10.1M. of the Local Rules of Practice of the United States District Court for the District of Colorado-Civil, a party must file a notice of new address within five days of any change of address. Mr. Houston has failed to comply with the Court's local rules and, as a result, he has failed within the time allowed to file an amended pleading as directed. Therefore, the action will be dismissed.
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. Houston failed to file an amended application 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 25th day of April, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court