United States District Court, D. Colorado
May 2, 2014
D. MARTIN, a.k.a. DARRYL MARTIN, a.k.a. DARYL MARTIN,  Applicant,
R. LYNN, Warden, AVCF, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, D. Martin, is in the custody of the Colorado Department of Corrections (DOC) at the Arkansas Valley Correctional Facility in Ordway, Colorado. Applicant initiated this action by filing pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Upon review of the pleading, Magistrate Judge Boyd N. Boland determined that Applicant's claims are properly raised in a 28 U.S.C. § 2241 action because he is challenging denial of his parole due to his DOC sex offender classification. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000) (challenge to validity of conviction is purpose of a 28 U.S.C. § 2254 action and challenge to execution of a sentence is purpose of a 28 U.S.C. § 2241 action). Magistrate Judge Boland directed Applicant to amend the Application. Specifically, Applicant was directed to submit his claims on a Court-approved form used in filing § 2241 actions and to comply with Fed.R.Civ.P. 8.
Magistrate Judge Boland also found that Applicant previously challenged the denial of his parole because of his sex offender classification in Martin v. Smelser, et al., No. 07-cv-00701-ZLW (D. Colo. June 27, 2007). In Case No. 07-cv-00701-ZLW, Applicant, as in this case, had improperly filed his claims on a Court-approved form and failed to comply with Fed.R.Civ.P. 8. Pursuant to a court order in Case No. 07-cv-00701-ZLW, Applicant complied by filing comprehendible claims on the correct form, but the action ultimately was dismissed for failure to exhaust state court remedies. Based on the similarities betwee this case and Case No. 07-00701-ZLW, and Applicant's ability to comply in that case to the court's order, the Court finds that Applicant is capable of complying with the directives here.
Magistrate Judge Boland warned Applicant that this action would be dismissed without further notice if he failed to comply within thirty days. Applicant has failed to comply within the time allowed. Therefore, the action will be dismissed.
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 Applicant files a notice of appeal he 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 Application is denied and the action is dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to comply with a Court order and for failure to prosecute. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.