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Garcia v. Doc

United States District Court, D. Colorado

November 18, 2014

[JEREMY] GARCIA, Applicant,
v.
EXECUTIVE DIRECTOR COLORADO DOC, and ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Jeremy Garcia, is a prisoner in the custody of the Colorado Department of Corrections at the correctional facility in Limon, Colorado. He submitted pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2). The Court reviewed the documents and determined they were deficient. Therefore, on October 6, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 4) directing Mr. Garcia to cure certain enumerated deficiencies in the case and file an amended application within thirty days if he wished to pursue his claims.

On October 7, 2014, the Court entered a separate order (ECF No. 5) denying Mr. Garcia's § 1915 motion because he had sufficient funds to pay the $5.00 filing fee and allowing him thirty days to pay the filing fee. The October 7 order warned him that if he failed to pay the filing fee as directed within thirty days, the habeas corpus application would be denied without prejudice and the action dismissed without further notice.

The October 6 order to cure and file an amended application pointed out that Mr. Garcia failed to include his first name in the caption to the habeas corpus application and noted that the only proper Respondent in a habeas corpus action is Applicant's current warden, superintendent, jailer, or other custodian. The October 6 order also pointed out that the application failed to comply with the applicable pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254 Cases in the United States District Courts (Section 2254 Rules). Therefore, the October 6 order directed Mr. Garcia to file within thirty days an amended application against the proper Respondent, i.e., his custodian, that complied with the pleading requirements of Fed.R.Civ.P. 8 and Rule 2 of the Section 2254 Rules.

Mr. Garcia was directed to obtain, with the assistance of his case manager or the facility's legal assistant, the Court-approved form for filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, and to use that form in curing the designated deficiencies and in filing the amended application. The October 6 order warned him that if he failed to cure the designated deficiencies and file an amended application as directed within thirty days, the application would be denied and the action dismissed without prejudice and without further notice.

Mr. Garcia has failed within the time allowed to cure the designated deficiencies, file an amended application as directed, pay the $5.00 filing fee, or otherwise communicate with the Court in any way. Therefore, the application will be denied and the action dismissed without prejudice for Mr. Garcia's failure within the time allowed to cure the designated deficiencies, file an amended application as directed, and pay the $5.00 filing fee, and for his failure to prosecute.

Finally, the Court certifies pursuant to § 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 Mr. Garcia files a notice of appeal he also must pay the full $505.00 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 for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) is denied and the action dismissed without prejudice pursuant to Rules 8 and 41(b) of the Federal Rules of Civil Procedure and Rule 2 of the Rules Governing Section 2254 Cases in the United States District Courts for the failure of Applicant, Jeremy Garcia, within the time allowed to cure the designated deficiencies, file an amended application as directed in the order of October 6, 2014, and pay the $5.00 filing fee, and for his failure to prosecute. 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. It is

FURTHER ORDERED that any pending motions are denied as moot.


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