Holmes v. People of the State of Colorado, The

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Christine M. Arguello on 7/21/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01280-BNB
J. LEE HOLMES,
Applicant,
v.
PEOPLE OF THE STATE OF COLORADO,
Respondent.

ORDER OF DISMISSAL

Applicant, J. Lee Holmes, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Holmes initiated this action by filing pro se a “Motion for
a 60 Day Extension of Time to File Habeas Corpus” (ECF No. 1). On May 7, 2014,
Magistrate Judge Boyd N. Boland entered an order denying the motion and directing
Mr. Holmes to cure certain deficiencies if he wishes to pursue any habeas corpus
claims. In particular, Magistrate Judge Boland directed Mr. Holmes to submit on the
proper form an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
and either to pay the $5.00 filing fee or to submit on the proper form a Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus
Action along with a certificate showing the balance in his inmate account. Mr. Holmes
was warned that the action would be dismissed without further notice if he failed to cure
these deficiencies within thirty days. On May 22, 2014, Mr. Holmes filed in this action a
“Notice to the Court & Affidavit of Truth and Fact” (ECF No. 4) in which he alleged he

had been unable to obtain from prison officials a certificate showing the balance in his
inmate account.
On June 10, 2014, Magistrate Judge Boland entered a second order directing Mr.
Holmes to cure the deficiencies in this action within thirty days. Magistrate Judge
Boland advised Mr. Holmes that, even if he was unable to obtain a certificate showing
the balance in his inmate account from prison officials, he still must cure the other
deficiencies by filing on the proper forms an application for a writ of habeas corpus and
a motion seeking leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Magistrate Judge Boland also advised Mr. Holmes that he must allege specific facts
detailing the steps he has taken to obtain the required certificate and why he is unable
to obtain the required certificate. Mr. Holmes again was warned that the action would
be dismissed if he failed to cure the deficiencies within the time allowed.
Mr. Holmes has failed to cure the deficiencies in this action and he has failed to
respond in any way to Magistrate Judge Boland’s second order directing him to cure the
deficiencies that was entered on June 10, 2014. Therefore, the action will be dismissed
without prejudice 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 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
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ORDERED that the action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Mr. Holmes failed to cure the
deficiencies 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
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

21st day of

July

, 2014.

BY THE COURT:

s/Christine M. Arguello
CHRISTINE M. ARGUELLO
United States District Judge, for
LEWIS T. BABCOCK, Senior Judge
United States District Court

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