Harvey v. Buck et al

Filing 3

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/26/14. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00835-BNB

CLYDE HARVEY,
Applicant,
v.
KEN BUCK, Weld County DA, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Clyde Harvey, currently resides in Briggsdale, Colorado. Mr. Harvey,
initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 challenging the validity of a Colorado state court conviction in Case
No. 11M973. Mr. Harvey asserts that he was convicted on September 22, 2011, in the
Weld County Court of driving without a valid license and insurance and was sentenced
to ninety days work release with a two-day credit. Mr. Harvey seeks recognition of his
status as a “State National and Independent Function Separate from the Commercial
System.” He also requests that Weld County either replace or return his truck or
compensate him and “comply with the terms of the prior notice and affidavit.”
The Court must construe the Application liberally because Mr. Harvey is
representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a

pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below,
the Court will deny the Application and dismiss the action.
The Court has jurisdiction to entertain an application for habeas relief pursuant to
28 U.S.C. § 2254 only from an applicant who is “in custody pursuant to the judgment of
a State court.” 28 U.S.C. § 2254(a). A prisoner seeking habeas corpus relief must be
in custody pursuant to the conviction or sentence under attack at the time the habeas
corpus application is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Mr.
Harvey is not in custody nor does he ask for release from custody as relief. Because
Mr. Harvey is not in custody for the challenged conviction, this Court lacks jurisdiction to
review the merits of his claims.
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 will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Harvey files a notice of appeal he must also 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 pursuant to
28 U.S.C. § 2254(a) for lack of jurisdiction. It is
FURTHER ORDERED that no certificate of appealability shall issue because Mr.
Harvey has not made a substantial showing that jurists of reason would find it debatable
whether the procedural ruling is correct and whether the underlying claim has
constitutional merit. It is
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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

26th day of

March

, 2014.

BY THE COURT:

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

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