Opinion
Civil Action No. 12-cv-01815-BNB
08-22-2012
FRANKIE L. MCCONNELL, Applicant, v. LAURIE TOFOYA, Respondent.
ORDER OF DISMISSAL
Applicant, Frankie L. McConnell, is a prisoner who currently is incarcerated at Denver Women's Correctional Facility. She submitted to the Court pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. The Court reviewed the document and determined it was deficient. Therefore, on July 12, 2012, Magistrate Judge Boyd N. Boland directed Ms. McConnell to cure certain enumerated deficiencies in the case within thirty days if she wished to pursue her claims.
The July 12 order pointed out that Ms. McConnell must submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action and a certificate showing the current balance in her prison account. The July 12 order also directed Ms. McConnell to obtain the Court-approved § 1915 motion and affidavit form (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov . The July 12 order warned Ms. McConnell that, if she failed to cure the designated deficiencies within thirty days, the application would be denied and the action dismissed without prejudice and without further notice.
Ms. McConnell has failed within the time allowed to cure the deficiencies designated in the July 12 order to cure. Therefore, the application will be denied and the action dismissed without prejudice for failure to cure the designated deficiencies as directed within the time allowed.
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 Ms. McConnell files a notice of appeal she also must 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 pursuant to 28 U.S.C. § 2241 is denied and the action are dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Applicant, Frankie L. McConnell, within the time allowed, to cure the deficiencies designated in the order to cure of July 12, 2012. 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 22nd day of August, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court