Opinion
Civil Action No. 15-cv-00143-GPG
02-27-2015
MELVIN VIERRA, JR., Applicant, v. [NO RESPONDENT NAMED], Respondent.
ORDER OF DISMISSAL
Applicant, Melvin Vierra, Jr., is a prisoner in the custody of the Colorado Department of Corrections. Mr. Vierra initiated this action by filing pro se a letter (ECF No. 1) requesting appointment of counsel to assist him with filing a motion in federal court. Based on the documents attached to the letter, it appeared that Mr. Vierra intended to file a habeas corpus action challenging the validity of a Colorado state court criminal conviction. The instant habeas corpus action was commenced and, on January 21, 2015, Magistrate Judge Gordon P. Gallagher entered an order directing Mr. Vierra to cure certain deficiencies if he wished to pursue any claims. Specifically, Magistrate Judge Gallagher ordered Mr. Vierra to file 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 Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. Mr. Vierra was warned that the action would be dismissed without further notice if he failed to cure the deficiencies within thirty days.
Mr. Vierra has failed to cure the deficiencies within the time allowed and he has failed to respond in any way to Magistrate Judge Gallagher's January 21 order. Therefore, the action will be dismissed without prejudice for failure to cure the deficiencies.
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. Vierra 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 27th day of February, 2015.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court