Miles v. No Respondents Named

Filing 10

ORDER of Dismissal. ORDERED that the action is dismissed without prejudice. FURTHER ORDERED that any pending motions 5 6 7 8 are denied as moot. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied. FURTHER ORDERED that no certificate of appealability will issue, by Judge Lewis T. Babcock on 1/5/12.(lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02928-BNB
MURPHY MILES, JR.,
Applicant,
v.
NO RESPONDENT NAMED,
Respondent.

ORDER OF DISMISSAL

Applicant, Murphy Miles, Jr., is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the correctional facility in
Limon, Colorado. On November 9, 2011, he submitted to the Court pro se the $5.00
filing fee and a letter stating his intention to file a habeas corpus action. See ECF Nos.
1 and 2. The Court reviewed the letter, determined it was deficient, and determined that
Mr. Miles did not indicate whether he was challenging the validity of his conviction, in
which case he should file his claims on the Court-approved form used in a filing a 28
U.S.C. § 2254 action, or the execution of his sentence, in which case he should file his
claims on a Court-approved form used in filing a 28 U.S.C. § 2241 action.
Therefore, on November 18, 2011, the Court entered an order to cure that
directed Mr. Miles to obtain the appropriate Court-approved form and applicable
instructions at www.cod.uscourts.gov if he wished to pursue his claims. The November

18 order warned Mr. Miles that, if he failed to cure the designated deficiency within thirty
days, the action would be dismissed without prejudice and without further notice.
On December 5, 2011, Mr. Miles submitted five documents, see ECF Nos. 6-9,
none of which cured the designated deficiency. Therefore, the action will be dismissed
without prejudice for Mr. Miles’ failure to cure the deficiency designated in the
November 18 order to cure.
Finally, 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 Mr. Miles files a notice of appeal he must also 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 action dismissed without prejudice pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure for the failure of Applicant, Murphy Miles, Jr., within
the time allowed, to cure the deficiency designated in the order to cure of November 18,
2011. It is
FURTHER ORDERED that any pending motions are denied as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is

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FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
DATED at Denver, Colorado, this

5th

day of

January

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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