Zambrano v. Archuleta et al

Filing 5

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/28/16. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02758-GPG
HECTOR OMAR ZAMBRANO,
Applicant,
v.
LOU ARCHULETA, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Hector Omar Zambrano, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Zambrano initiated this action by filing pro se an
Application for a 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. 3). On December 18, 2015, Magistrate Judge Gordon
P. Gallagher entered an order directing Mr. Zambrano to cure certain deficiencies if he
wishes to pursue his claims. Most importantly, Magistrate Judge Gallagher ordered Mr.
Zambrano to submit a certificate showing the balance in his inmate account. Mr.
Zambrano was warned that the action would be dismissed without further notice if he
failed to cure the deficiencies within thirty days.
Mr. Zambrano has failed to cure the deficiencies within the time allowed and he
has failed to respond to Magistrate Judge Gallagher’s December 18 order in any way.
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. Zambrano 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
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

28th

day of

January

, 2016.

BY THE COURT:

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

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