Gray v. Falk et al
Filing
14
ORDER granting the motions to dismiss 12 and 13 by Judge Lewis T. Babcock on 8/25/14. This action is dismissed without prejudice as moot, leave to proceed in forma pauperis on appeal is denied, and no certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01639-BNB
CODY LEN GRAY,
Applicant,
v.
JAMES FALK, Warden of SCF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.
ORDER OF DISMISSAL
Applicant, Cody Len Gray, was a prisoner in the custody of the Colorado
Department of Corrections at the correctional facility in Sterling, Colorado, when he filed
pro se on June 11, 2014, an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 (ECF No. 1). He has paid the $5.00 filing fee.
On July 17, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
7) directing Respondents to file a pre-answer response limited to addressing 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). On August 4, 2014 Respondents
submitted their pre-answer response (ECF No. 11). Mr. Gray did not submit a reply to
the pre-answer response, although he was afforded the opportunity to do so.
On August 19, 2014, Respondents filed a document titled “Suggestion of Death
and Motion to Dismiss” (ECF No. 12) advising the Court that Applicant died in the
Sterling Correctional Facility on or about August 11, 2014, and confirming his death with
a copy of Mr. Gray’s “Offender Profile” as of August 18, 2014 (ECF No. 12, ex. A)
indicating that Applicant is “Deceased.” Id. On August 20, 2014, Respondents also
filed a motion to dismiss (ECF No. 13) the instant action as moot.
The death of a habeas corpus applicant renders the application moot and subject
to dismissal. See, e.g., Dove v. United States, 423 U.S. 325, 325 (1976) (dismissing
certiorari petition upon petitioner’s death); Figueroa v. Rivera, 147 F.3d 77, 82 (1st Cir.
1998) (“[Applicant’s] death during the pendency of his habeas petition rendered that
action moot, and no earthy circumstance can revive it.”); McMillin v. Bowersox, 102 F.3d
987, 987 (8th Cir. 1996) (because applicant’s imprisonment ended upon his death, there
can be no future collateral consequences flowing from his imprisonment, and his
habeas corpus application is moot); and Towns v. Martin, 2013 U.S. Dist. LEXIS 53036,
at *1-2 (W.D. Okla. Mar. 20, 2013) (collecting cases) (§ 2254 petition does not survive
petitioner’s death and should be dismissed with prejudice), supplemental report &
recommendation adopted, Towns v. Martin, 2013 U.S. Dist. LEXIS 52200, at *1 (W.D.
Okla. Apr. 11, 2013).
The Court finds that, as a result of the death of Mr. Gray, the instant action is
moot. Therefore, the habeas corpus application will be denied and the action
dismissed.
Finally, the Court certifies pursuant to § 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 a notice of appeal is filed, the full $505.00 appellate filing fee must be paid or
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a motion to proceed in forma pauperis in the United States Court of Appeals for the
Tenth Circuit filed within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the motions to dismiss (ECF Nos. 12 and 13) are granted. It is
FURTHER ORDERED that the habeas corpus application is denied and the
action dismissed with prejudice as moot. 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. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this
25th day of
August
, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court
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