Clark v. No Named Respondents

Filing 4

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/5/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02082-BNB
CHRISTOPHER JOE CLARK,
Applicant, named as Petitioner,
v.
[NO NAMED RESPONDENT],
Respondent.

ORDER OF DISMISSAL

Applicant, Christopher Joe Clark, is a prisoner in the custody of the Colorado
Department of Corrections at the correctional facility in Sterling, Colorado. He
submitted pro se a Petition for Writ of Habeas Corpus (ECF No. 1) appearing to
challenge the execution of his sentence. The clerk of the Court docketed the petition as
filed pursuant to 28 U.S.C. § 2254.
The Court reviewed the petition and determined it was deficient. Therefore, on
July 28, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 3) directing
Mr. Clark to cure certain enumerated deficiencies in the case within thirty days if he
wished to pursue his claims.
The July 28 order pointed out that if Mr. Clark was attempting to challenge the
execution of his state court sentence, the claims must be asserted in a habeas corpus
application pursuant to 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 865
(10th Cir. 2000). The July 28 order further pointed out that if Mr. Clark was attempting

to challenge the validity of his state court conviction and sentence, the claims must be
asserted in a habeas corpus application pursuant to § 2254. See id.
The July 28 order also pointed out that Mr. Clark failed to submit either the $5.00
filing fee or a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action, together with a certificate of the warden
showing the current balance in his prison account. The July 28 order further pointed out
that Mr. Clark failed to submit an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 on the proper, Court-approved form that named the appropriate
Respondent. The July 28 order directed Mr. Clark to obtain, with the assistance of his
case manager or the facility’s legal assistant, the Court-approved forms for filing a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action and an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 if he sought to challenge the execution of his sentence or an Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 if he sought to challenge the
validity of his conviction and sentence, and use the appropriate form in filing the habeas
corpus application.
The July 28 order warned Mr. Clark not to file both a habeas corpus application
pursuant to § 2241 and a habeas corpus application pursuant to § 2254. The July 28
order further warned Mr. Clark that if he failed to cure the designated deficiencies within
thirty days, the action would be dismissed without prejudice and without further notice.
Mr. Clark has failed within the time allowed to cure the designated deficiencies as
directed or otherwise communicate with the Court in any way. Therefore, the action will

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be dismissed without prejudice for Mr. Clark’s failure to cure the designated deficiencies
as directed within the time allowed, and for his failure to prosecute.
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 Mr. Clark files a notice of appeal he also must pay the full $505.00 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 Petition for Writ of Habeas Corpus is denied and the action is
dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil
Procedure for the failure of Applicant, Christopher Joe Clark, to cure the deficiencies
designated in the order to cure of July 28, 2014, within the time allowed, and for his
failure to prosecute. 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. It is

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FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

5th

day of

September

, 2014.

BY THE COURT:

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

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