Opinion
Civil Action No. 11-cv-02354-BNB
12-15-2011
VICTOR TEON LINDSEY II, Applicant, v. ATTORNEY CESAR PIERCE VARELA, and WARDEN CHARLES R. DANEIL, USP Prison Bureau, Florence Federal Prison, a corporate entity and holder of the key, Respondents.
ORDER OF DISMISSAL
Applicant, Victor Teon Lindsey II, is a prisoner in the custody of the United States Bureau of Prisons who currently is incarcerated at the United States Penitentiary in Florence, Colorado. Mr. Lindsey, acting pro se, initiated this action by filing a document titled "Petition for Emergency Writ of Habeas Corpus." He paid the $5.00 filing fee. On September 13, 2011, Magistrate Judge Craig B. Shaffer directed him to file an amended application on the Court-approved form for an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. On November 3, 2011, Mr. Lindsey filed the amended habeas corpus application.
The Court reviewed the November 3 amended application and on November 9, 2011, Magistrate Judge Boyd N. Boland ordered Mr. Lindsey to file within thirty days a second amended application on the Court-approved § 2241 habeas corpus form that named the proper Respondent and complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, including to assert claims and supporting facts. The November 9 order warned Mr. Lindsey that, if he failed within the time allowed to file a second amended application as directed, the amended application would be denied and the action dismissed without prejudice and without further notice.
Mr. Lindsey has failed, within the time allowed, to file a second amended application as directed or otherwise to communicate with the Court in any way. Therefore, the amended application will be denied and the action 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. Lindsey 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 the amended application is denied and the action dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Applicant, Victor Teon Lindsey, II, to file within the time allowed a Second Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that complies with the order of November 9, 2011, and for his failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. 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.
DATED at Denver, Colorado, this 15th day of December , 2011.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court