Vierra, Jr. v. No Named Defendants

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 2/27/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00143-GPG
MELVIN VIERRA, JR.,
Applicant,
v.
[NO RESPONDENT NAMED],
Respondent.

ORDER OF DISMISSAL

Applicant, Melvin Vierra, Jr., is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Vierra initiated this action by filing pro se a letter (ECF
No. 1) requesting appointment of counsel to assist him with filing a motion in federal
court. Based on the documents attached to the letter, it appeared that Mr. Vierra
intended to file a habeas corpus action challenging the validity of a Colorado state court
criminal conviction. The instant habeas corpus action was commenced and, on January
21, 2015, Magistrate Judge Gordon P. Gallagher entered an order directing Mr. Vierra
to cure certain deficiencies if he wished to pursue any claims. Specifically, Magistrate
Judge Gallagher ordered Mr. Vierra to file an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 and either to pay the $5.00 filing fee for a habeas corpus
action or to file a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action. Mr. Vierra was warned that the action would
be dismissed without further notice if he failed to cure the deficiencies within thirty days.

Mr. Vierra has failed to cure the deficiencies within the time allowed and he has
failed to respond in any way to Magistrate Judge Gallagher’s January 21 order.
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
ORDERED that the action is dismissed without prejudice pursuant to Rule 41(b)
of the Federal Rules of Civil Procedure because Mr. Vierra 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

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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

27th

day of

February

, 2015.

BY THE COURT:

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

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