Opinion
Civil Action No. 14-cv-02149-BNB
09-12-2014
GARY ROBERT MILLER, Applicant, v. RICK RAEMISCH, Respondent.
ORDER OF DISMISSAL
Applicant, Gary Robert Miller, who resides in Cañon City, Colorado, alleges he is on parole from the Colorado Department of Corrections. Mr. Miller submitted pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1). He paid the $5.00 filing fee.
Magistrate Judge Craig B. Shaffer reviewed the habeas corpus application, and determined it was deficient. On August 4, 2014, Magistrate Judge Shaffer entered an order directing Mr. Miller within thirty days to cure a deficiency in the action by obtaining, with the assistance of his case manager or the facility's legal assistant, the Court-approved form for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, and using that form to submit an amended application that sued the proper Respondent and complied with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and Rule 2(c) of the Rules Governing Section 2254 Cases in the United States Courts. Magistrate Judge Shaffer warned Mr. Miller that failure to comply with the August 4 order within the time allowed would result in the denial of the habeas corpus application and dismissal of the instant action without further notice.
Mr. Miller has failed within the time allowed to cure the deficiency in this case, file an amended habeas corpus application as directed, or otherwise communicate with the Court in any way. Therefore, the action will be dismissed without prejudice for Mr. Miller's failure to cure the designated deficiency and file an amended application as directed within the time allowed, and for his failure to prosecute.
Finally, the Court certifies pursuant to § 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. Miller files a notice of appeal he also must pay the full $505.00 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 Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) 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, Gary Robert Miller, to cure the deficiency designated in the order to cure of August 4, 2014, and file an amended application as directed within the time allowed, and for his failure to prosecute. 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. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED September 12, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court