Leffebre v. Berkebile et al
ORDER of Dismissal. ORDERED that the Petition for Habeas Corpus is denied and the action is dismissed without prejudice. FURTHER ORDERED that the motion to dismiss 4 is denied as moot. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 12/10/12.(sgrim)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02891-BNB
DAVID BERKEBILE, Warden,
FEDERAL BUREAU OF PRISONS, and
U.S. DEPARTMENT OF JUSTICE,
ORDER OF DISMISSAL
Petitioner, Andre Leffebre, initiated this action by filing pro se a Petition for
Habeas Corpus (ECF No. 1). On November 2, 2012, Magistrate Judge Boyd N. Boland
entered an order directing Mr. Leffebre to cure certain deficiencies if he wished to
pursue his claims in this action. More specifically, Magistrate Judge Boland ordered Mr.
Leffebre to file an amended pleading on the proper form and either to pay the $5.00
filing fee or to file a properly supported motion seeking leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. Mr. Leffebre was warned that the action would
be dismissed without further notice if he failed to cure the deficiencies within thirty days.
On November 21, 2012, Mr. Leffebre filed two documents that were docketed as
a motion to dismiss (ECF No. 4) and a letter to the Court (ECF No. 5). In the motion to
dismiss, Mr. Leffebre asks the Court to send the case back to him, to dismiss the case,
to send him the proper form for filing a habeas corpus application, and to hold until a
future date the funds he was sending to the Court. A handwritten notation on the
motion to dismiss, apparently made by someone in the office of the Clerk of the Court,
indicates that the proper forms for filing an application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 were mailed to Mr. Leffebre. (See ECF No. 4.) In the
letter to the Court, Mr. Leffebre requests that a copy of the application filed in this action
be mailed to him along with the proper form and he indicates that he is making
arrangements to pay the $5.00 filing fee.
Mr. Leffebre has not filed an application for a writ of habeas corpus on the proper
form and he has failed either to pay the filing fee or to file a properly supported motion
seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Therefore,
the action will be dismissed for failure to cure the deficiencies. 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 Petitioner 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 Petition for Habeas Corpus is denied and the action is
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure because Mr. Leffebre failed to cure the deficiencies as directed. It is
FURTHER ORDERED that the motion to dismiss (ECF No. 4) is denied as moot.
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 10th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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