Opinion
Civil Action No. 14-cv-03308-GPG
03-16-2015
DAWANE ARTHUR MALLETT, Applicant, v. J. OLIVER, ADX Warden/Trustee, Respondent.
ORDER OF DISMISSAL
Applicant, Dawane Arthur Mallett, is a prisoner in the custody of the Federal Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in Florence, Colorado. Mr. Mallett 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 February 2, 2015, he filed an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 6). Mr. Mallett claims he is entitled to be released because his convictions in two criminal cases allegedly were vacated in September 2014.
On February 5, 2015, Magistrate Judge Gordon P. Gallagher ordered Mr. Mallett to show cause why this action should not be dismissed. Magistrate Judge Gallagher took judicial notice of the public docketing records in the criminal cases Mr. Mallett specified and found no evidence or indication that either conviction has been vacated. Therefore, Mr. Mallett was ordered to show cause why this action should not be dismissed because the factual premise on which his claims rely, his assertion that his criminal convictions have been vacated, is incorrect. Alternatively, to the extent the amended application could be construed as challenging the validity of Mr. Mallett's criminal convictions, Magistrate Judge Gallagher ordered him to show cause why this action should not be dismissed for lack of statutory jurisdiction because he has an adequate and effective remedy available to him in the sentencing courts. Mr. Mallett was warned that the action would be dismissed without further notice if he failed to show good cause within thirty days.
Mr. Mallett has failed to show good cause why this action should not be dismissed and he has failed to respond in any way to Magistrate Judge Gallagher's February 5 show cause order. Therefore, the action will be dismissed for the reasons stated in the show cause order. 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 $505 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 and the amended application are denied and the action is dismissed for the reasons stated in the Order to Show Cause (ECF No. 9) entered in this action on February 5, 2015. 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 16th day of March, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court