Dunker v. Zupan et al

Filing 17

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/3/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00934-GPG

PETER EDWARD DUNKER,
Applicant,
v.
DAVID ZUPAN, Warden CTCF,
CYNTHIA COFFMAN, Attorney General of the State of Colorado,

Respondents.

ORDER OF DISMISSAL

Applicant, Peter Edward Dunker, is a prisoner in the custody of the Colorado
Department of Corrections, currently incarcerated at the Colorado Territorial Correctional
Facility in Canon City, Colorado. Mr. Dunker initiated this action by filing pro se an
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). On
July 17, 2015, Mr. Dunker filed an Amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2254 (ECF No. 6) (the “Amended Application”). Mr. Dunker is
challenging the validity of his conviction in Denver District Court case number
09CR10123.
On August 24, 2015, Magistrate Judge Gordon P. Gallagher ordered Respondents
to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness
under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C.

§ 2254(b)(1)(A) if Respondents intended to raise either or both of those defenses in this
action. (ECF No. 11). On September 14, 2015, Respondents filed their Pre-Answer
Response (ECF No. 15) arguing that claim five is defaulted, claim eight may be
unexhausted, and the other claims are either unexhausted or defaulted. Mr. Dunker has
not filed a reply to the Pre-Answer Response despite being given an opportunity to do so.
On October 27, 2015, Magistrate Judge Gallagher ordered Applicant to show
cause in writing within thirty days why the amended application should not be dismissed
because the claims are either procedurally barred and/or unexhausted. Applicant has
failed to respond to the show-cause order within the time allowed. Therefore, for the
reasons discussed in the October 27, 2015 show-cause order (ECF No. 16), Mr. Dunker’s
amended application will be dismissed because his claims are either procedurally barred
or unexhausted.
The Court also 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 Amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. ' 2254 (ECF No. 6) is denied and the action is dismissed because the claims
are either procedurally barred or unexhausted.
FURTHER ORDERED that no certificate of appealability will issue because

2

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

3rd

day of

December

BY THE COURT:
s/Lewis T. Babcock
Lewis T. Babcock, Senior Judge
United States District Court

3

, 2015.