Garcia v. Executive Director Colorado DOC et al

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/18/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02727-BNB
[JEREMY] GARCIA,
Applicant,
v.
EXECUTIVE DIRECTOR COLORADO DOC, and
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Jeremy Garcia, is a prisoner in the custody of the Colorado
Department of Corrections at the correctional facility in Limon, Colorado. He submitted
pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No.
1) and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
1915 in a Habeas Corpus Action (ECF No. 2). The Court reviewed the documents and
determined they were deficient. Therefore, on October 6, 2014, Magistrate Judge Boyd
N. Boland entered an order (ECF No. 4) directing Mr. Garcia to cure certain enumerated
deficiencies in the case and file an amended application within thirty days if he wished
to pursue his claims.
On October 7, 2014, the Court entered a separate order (ECF No. 5) denying Mr.
Garcia’s § 1915 motion because he had sufficient funds to pay the $5.00 filing fee and
allowing him thirty days to pay the filing fee. The October 7 order warned him that if he

failed to pay the filing fee as directed within thirty days, the habeas corpus application
would be denied without prejudice and the action dismissed without further notice.
The October 6 order to cure and file an amended application pointed out that Mr.
Garcia failed to include his first name in the caption to the habeas corpus application
and noted that the only proper Respondent in a habeas corpus action is Applicant’s
current warden, superintendent, jailer, or other custodian. The October 6 order also
pointed out that the application failed to comply with the applicable pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure and Rules 2(c)(1) and
2(c)(2) of the Rules Governing Section 2254 Cases in the United States District Courts
(Section 2254 Rules). Therefore, the October 6 order directed Mr. Garcia to file within
thirty days an amended application against the proper Respondent, i.e., his custodian,
that complied with the pleading requirements of Fed. R. Civ. P. 8 and Rule 2 of the
Section 2254 Rules.
Mr. Garcia was directed to obtain, with the assistance of his case manager or the
facility’s legal assistant, the Court-approved form for filing an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241, and to use that form in curing the
designated deficiencies and in filing the amended application. The October 6 order
warned him that if he failed to cure the designated deficiencies and file an amended
application as directed within thirty days, the application would be denied and the action
dismissed without prejudice and without further notice.
Mr. Garcia has failed within the time allowed to cure the designated deficiencies,
file an amended application as directed, pay the $5.00 filing fee, or otherwise
communicate with the Court in any way. Therefore, the application will be denied and
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the action dismissed without prejudice for Mr. Garcia’s failure within the time allowed to
cure the designated deficiencies, file an amended application as directed, and pay the
$5.00 filing fee, 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. Garcia 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 Application for Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 1) is denied and the action dismissed without prejudice pursuant to
Rules 8 and 41(b) of the Federal Rules of Civil Procedure and Rule 2 of the Rules
Governing Section 2254 Cases in the United States District Courts for the failure of
Applicant, Jeremy Garcia, within the time allowed to cure the designated deficiencies,
file an amended application as directed in the order of October 6, 2014, and pay the
$5.00 filing fee, 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. It is

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

18th

day of

November

, 2014.

BY THE COURT:

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

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