Olivas-Sepulbeda v. Attorney General of the State of Colorado, The

Filing 14

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/1/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01100-BNB
ABRAHAM OLIVAS-SEPULBEDA,
Applicant,
v.
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondent.

ORDER OF DISMISSAL

Applicant, Abraham Olivas-Sepulbeda, initiated this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On
June 20, 2014, Mr. Olivas-Sepulbeda filed an amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8). On June 26, 2014, Magistrate
Judge Boyd N. Boland entered an order directing Mr. Olivas-Sepulbeda to file a second
amended application that clarifies the conviction he is challenging, the specific claims he
is asserting, and the specific relief he is seeking. Mr. Olivas-Sepulbeda was warned
that the action would be dismissed without further notice if he failed to file a second
amended application within thirty days.
On July 7, 2014, the copy of Magistrate Judge Boland’s June 26 order that was
mailed to Mr. Olivas-Sepulbeda at the address he provided was returned to the Court
undelivered. The returned envelope (ECF No. 12) bears a stamp or sticker that reads
“RETURN TO SENDER, ATTEMPTED NOT KNOWN, UNABLE TO FORWARD.” An

order granting Mr. Olivas-Sepulbeda leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 in this action also was returned to the Court undelivered on July 14,
2014. (See ECF No. 13.)
Pursuant to Rule 11.1(d) of the Local Rules of Practice of the United States
District Court for the District of Colorado-Civil, an unrepresented party must file a notice
of new address within five days of any change of address. Mr. Olivas-Sepulbeda has
failed to comply with the Court’s local rules and, as a result, he has failed within the time
allowed to file a second amended application as directed. Therefore, the action will be
dismissed.
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 Applicant files a notice of appeal he also must 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 habeas corpus application (ECF No. 1) and the amended
application (ECF No. 8) are denied and the action is dismissed without prejudice
pursuant to Rule 41(b) of the Federal Rules of Civil Procedure because Mr. OlivasSepulbeda failed to prosecute and file a second amended application as directed. 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

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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

1st

day of

August

, 2014.

BY THE COURT:

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

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