Primm v. Sweeny et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/26/16. No certificate of appealability will issue. (dkals, ) Modified on 4/26/2016 to note that this was filed in error, and doesn't pertain to this case (dkals, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00542-LTB
LOU ARCHULETA, Warden,
ORDER OF DISMISSAL
Applicant Steven Choi is a prisoner in the custody of the Colorado Department of
Corrections. He initiated this action by filing pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. ' 2241. (ECF No. 1). He paid the required filing fee.
(ECF No. 5).
As part of the Court’s review pursuant to D.C.COLO.LCivR 8.1(b), the Court
determined that the submitted Application was deficient. (ECF No. 6). On March 14,
2016, the Court entered an Order Directing Applicant to File Amended Application. (Id.).
Specifically, the Court instructed Mr. Choi to submit an amended application within thirty
days of the date of the Order, because the initial application failed to allege a violation of
federal constitutional rights or facts that demonstrate entitlement to habeas corpus relief.
(Id.). The Court directed Mr. Choi that, if he intended to assert a constitutional due
process claim, he must allege facts that demonstrate he was deprived of a constitutionally
protected liberty interest without adequate due process. (Id.). The Court warned Mr.
Choi that if he failed to file a compliant amended application within the time provided, the
action would be dismissed without further notice. (Id.).
The time for compliance with the Order Directing Applicant to File Amended
Application has now run, without response from Applicant. Mr. Choi has failed to comply
with the Order within the time allowed and has not requested additional time to do so. He
has not alleged a violation of any federal constitutional right or facts that demonstrate
entitlement to habeas corpus relief.
Therefore, the action will be dismissed without prejudice for failure to prosecute
and comply with the Court’s Order. 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 Mr. Choi 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 this action is dismissed without prejudice pursuant to Rule 41(b) of
the Federal Rules of Civil Procedure because Mr. Choi failed to prosecute and comply
with the Court’s Order. It is
FURTHER ORDERED that no certificate of appealability will issue because Mr.
Choi 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
BY THE COURT:
_s/Lewis T. Babcock
LEWIS T. BABCOCK
U.S. Senior District Judge
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