Opinion
Civil Action No. 12-cv-02943-BNB
12-28-2012
BRENT LEE MAILAND, Applicant, named as Defendant, v. THE PEOPLE OF THE STATE OF COLORADO, Respondent.
ORDER OF DISMISSAL
Applicant, Brent Lee Mailand, currently is incarcerated at the Weld County Jail in Greeley, Colorado. He initiated this action by filing pro se a document titled "Writ of Habeas Corpus" (ECF No. 1).
On November 9, 2012, as part of the Court's review pursuant to D.C.COLO.LCivR 8.2, Magistrate Judge Boyd N. Boland ordered Mr. Mailand to cure certain deficiencies if he wished to pursue his claims. Specifically, Magistrate Judge Boland ordered Mr. Mailand to submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action together with a certificate of the warden showing the current balance in his prison account. Magistrate Judge Boland also directed Mr. Mailand to file a 28 U.S.C. § 2241 habeas corpus application on the proper, Court-approved form and to name his current custodian as Respondent. The November 9 order directed Mr. Mailand to obtain the Court-approved forms to file the § 1915 motion and affidavit and § 2241 application, along with the applicable instructions, at www.cod.uscourts.gov. Lastly, Magistrate Judge Boland warned Mr. Mailand that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
Mr. Mailand has failed to cure the designated deficiencies within the time allowed, or otherwise to communicate with the Court in any way. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies designated in the November 9 order to cure, and for Mr. Mailand'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. Mailand 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 document titled "Writ of Habeas Corpus" (ECF No. 1) is denied and the action dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for the failure of Applicant, Brent Lee Mailand, to cure the deficiencies designated in the order to cure of November 9, 2012, 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. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this 28th day of December, 2012.
BY THE COURT:
____________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court