Opinion
Civil Action No. 12-cv-02916-BNB
01-15-2013
VICTOR M. VENTURA, Applicant, v. JAMES FAULK, Warden, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
Applicant, Victor M. Ventura, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. Applicant, acting pro se, initiated this action by submitting an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action.
In an order entered on November 30, 2012, the Court denied Applicant leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 because he alleged that he had $293.12 in his prison trust fund account. The November 30 Order directed Applicant to pay the full $5.00 filing fee within thirty days, and warned him that if he failed to do so within the time allowed the Application would be denied and the action dismissed without prejudice and without further notice.
Applicant has failed within the time allowed to pay the $5.00 filing fee or otherwise communicate with the Court in any way.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order is not 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 Plaintiff files a notice of appeal he must pay the full $455 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 is denied and the action is dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b) for failure to pay the $5.00 filing fee and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this 15th day of January, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court