Opinion
Civil Action No. 14-cv-00739-BNB
04-18-2014
CHRIS TILLOTSON, Applicant, v. UNITED STATES OF AMERICA, Respondent.
ORDER OF DISMISSAL
Applicant, Chris Tillotson, is an inmate at the Colorado Mental Health Institute in Pueblo, Colorado. Mr. Tillotson initiated this action by filing pro se a pleading (ECF No. 1) on the wrong form claiming he was convicted in Colorado state court of a crime he did not commit and seeking to have the charges dropped or reduced. Mr. Tillotson identifies the state court case number for the conviction he is challenging as case number 07-2358 in the Arapahoe County, Colorado, Combined Court. The instant habeas corpus action was commenced and, on March 12, 2014, Magistrate Judge Boyd N. Boland entered an order directing Mr. Tillotson to cure certain deficiencies if he wished to pursue any claims in this action. Specifically, Magistrate Judge Boland ordered Mr. Tillotson to file on the proper form an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and either to pay the $5.00 filing fee for a habeas corpus action or to file a properly supported Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. Mr. Tillotson was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On March 13, 2014, Mr. Tillotson submitted to the Court for filing without a case number an unsigned Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his conviction and sentence in Arapahoe County District Court case number 07CR2358; a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action; and the $5.00 filing fee for a habeas corpus action. A separate habeas corpus action was commenced, see Tillotson v. May, No. 14-cv-00751-BNB, and Mr. Tillotson was ordered in that action to file a signed Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr. Tillotson has cured the deficiency in civil action number 14-cv-00751-BNB.
Mr. Tillotson has not cured the deficiencies in this action and he may not challenge the validity of the same conviction in two separate habeas corpus actions. Therefore, the instant action will be dismissed without prejudice and Mr. Tillotson must pursue his claims challenging the validity of his conviction in civil action number 14-cv-00751-BNB.
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 action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Tillotson failed to cure the deficiencies as directed. 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 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 18th day of April , 2014.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court