Opinion
Civil Action No. 12-cv-02804-BNB
01-23-2013
REYNALDO Y. VILLA, Applicant, v. D.O.C. WARDEN JAMES FAULKER, and JOHN W. SUTHERS, Attorney General of the State of Colorado, Respondents.
ORDER OF DISMISSAL
Applicant, Reynaldo Y. Villa, is a prisoner in the custody of the Colorado Department of Corrections at the Sterling Correctional Facility in Sterling, Colorado. Mr. Villa initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) challenging the validity of his criminal conviction in Denver District Court case number 2005CR400 . On November 13, 2012, Magistrate Judge Boyd N. Boland ordered Mr. Villa to file an amended application that clarifies the claims he is asserting in this action. In particular, Magistrate Judge Boland noted that Mr. Villa had failed to identify the specific federal constitutional rights allegedly violated and he failed to allege specific facts in support of his claim or claims. Mr. Villa was warned that the action would be dismissed without further notice if he failed to file an amended application within thirty days. On December 13, 2012, Magistrate Judge Boland entered a minute order granting Mr. Villa an additional thirty days to file an amended application and directing the clerk of the Court to mail to Mr. Villa a blank copy of the necessary pleading form to file an amended application.
Mr. Villa also has filed a separate habeas corpus action challenging the validity of his conviction in another Denver District Court case, case number 2005CR5751. See Villa v. Dep't of Corrections, No. 12-cv-01810-BNB (D. Colo. filed July 11, 2012).
Mr. Villa has failed to file an amended application within the time allowed. Therefore, the action will be dismissed without prejudice for failure to comply with a court order. 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 $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 habeas corpus application (ECF No. 1) is denied and the action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. Villa failed to comply with a court order. 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 23rd day of January , 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court