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Morse v. State

United States District Court, Tenth Circuit

January 16, 2014

LARRY JACK MORSE, Petitioner,
v.
STATE OF COLORADO, Respondent.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, Larry Jack Morse, is detained at the Jefferson County Detention Facility in Golden, Colorado. He initiated this action by filing a letter with the Court challenging his detention pursuant to pending state criminal charges. "[A] state court defendant attacking his pretrial detention should bring a habeas petition pursuant to the general grant of habeas authority contained within 28 U.S.C. § 2241." Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007); Yellowbear v. Wyo. Att'y Gen., 525 F.3d 921, 924 (10th Cir. 2008).

On November 19, 2013, Magistrate Judge Boyd N. Boland directed Mr. Morse to cure certain enumerated deficiencies in this action within thirty days. Specifically, Mr. Morse was ordered to submit a Prisoner's Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the court-approved form, or, in the alternative, to pay the $400.00 filing fee. Mr. Morse was also instructed to submit an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the court-approved form. Magistrate Judge Boland directed Mr. Morse to obtain the court-approved forms, along with the applicable instructions, on this Court's website (with the assistance of his case manager or the facility's legal assistant), at www.cod.uscourts.gov. Magistrate Judge Boland warned Mr. Morse in the November 19 Order that failure to cure the designated deficiencies by the court-ordered deadline would result in dismissal of the action without further notice.

On December 2, 2013, Plaintiff filed a Letter with the Court requesting copies of the forms needed to cure the deficiencies specified in the November 19, 2013 Order. In a December 4, 2013 Minute Order, the Court directed the clerk of the court to mail Plaintiff copies of the forms for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. The Court instructed Mr. Morse that he had thirty days from December 4 to cure the deficiencies as directed in the November 19 Order.

Mr. Morse has now failed to submit any documents in compliance with the November 19 Order and the December 4 Minute Order. Furthermore, Mr. Morse has not communicated with the Court since December 2, 2013. Accordingly, it is

ORDERED that this action is dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for the failure of Plaintiff, Larry Jack Morse, to comply with the November 19 Order Directing Plaintiff to Cure Deficiencies and for failure to prosecute. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied for the purpose of appeal. 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. See Coppedge v. United States, 369 U.S. 438 (1962). If Mr. Morse files a notice of appeal he must also 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.


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