Pepper v. Archuleta et al

Filing 16

ORDER dismissing case as of 12/4/13, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/12/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02145-BNB
DARNEAU VERSILL PEPPER,
Applicant,
v.
LOU ARCHULETA, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DISMISSING CASE

Applicant, Darneau Versill Pepper initiated this action pro se by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. On October 3,
2013, Magistrate Judge Boyd N. Boland entered an order directing Respondents to file
a Pre-Answer Response and address the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and/or exhaustion of state court remedies under 28 U.S.C.
§ 2254(b)(1)(A). Respondents filed a Response on November 20, 2013; argued that

Claims One, Three, and Four are not exhausted; and urged that the Application is
subject to dismissal without prejudice because it is a mixed petition . Subsequently, on
December 4, 2013, Applicant filed a Motion to Voluntarily Dismiss his Habeas Corpus
Application Without Prejudice, ECF No. 15. Applicant conceded the Application is a
mixed petition and that Colo. R. Crim. P. 35(c) provides an avenue for him to exhaust
his federal habeas claims in state court.

The Court must construe the Motion liberally because Applicant is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Rule 41(a)(1)(A) provides that “the [applicant] may dismiss
an action without a court order by filing: (i) a notice of dismissal before the opposing
party serves either an answer or a motion for summary judgment . . . .” No answer on
the merits or motion for summary judgment has been filed by Respondents in this
action. Further, a voluntary dismissal under Rule 41(a)(1)(A)(i) is effective immediately
upon the filing of a written notice of dismissal, and no subsequent court order is
necessary. See J. Moore, Moore’s Federal Practice ¶ 41.02(2) (2d ed. 1995); Hyde
Constr. Co. v. Koehring Co., 388 F.2d 501, 507 (10th Cir. 1968).
The Court, therefore, construes the Motion as a Notice of Dismissal filed
pursuant to Rule 41(a)(1)(A)(i). The file will be closed as of December 4, 2013, the date
the Notice was filed with the Court. See Hyde Constr. Co., 388 F.2d at 507.
Finally, the Court 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 is
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 also pay the full $505.00 appellate
filing fee or file a motion to proceed in forma pauperis in the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24. Accordingly, it is
ORDERED that the Motion to Voluntarily Dismiss, ECF No. 15, is construed as a
Notice of Dismissal filed pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i) and is effective as of
December 4, 2013, the date Applicant filed the Notice in this action. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 12th day of

December , 2013.

BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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