Del Duca v. Anderson

F I L E D
United States Court of Appeals
Tenth Circuit
SEP 8 1997
UNITED STATES COURT OF APPEALS
PATRICK FISHER
TENTH CIRCUIT Clerk
NICHOLAS J. DEL DUCA,
Petitioner-Appellant,
No. 96-1365
v. (D.C. No. 96-S-1232)
(Colo.)
JOHN ANDERSON,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Nicholas Del Duca, a pro se prisoner, brought this habeas corpus action and
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
filed motions for leave to proceed in forma pauperis, for trial transcripts, and for
appointed counsel. The district court dismissed the suit without prejudice for
failure to correct deficiencies.
The district court issued an order informing Mr. Del Duca that his
documents were deficient in three respects: Mr. Del Duca had not submitted a
certified copy of his prisoner’s trust fund statement, he had not used the proper
form, and his complaint was missing. Nonetheless, the court directed the clerk to
commence an action and ordered Mr. Del Duca to cure the deficiencies within
thirty days. The order further stated that if Mr. Del Duca failed to do so, the
action would be dismissed, without prejudice, without further notice.
Mr. Del Duca filed some papers in response to the court’s order, but these
filings did not cure all of the deficiencies. Accordingly, the district court
dismissed the action without prejudice. Mr. Del Duca appeals. We have since
held that a habeas petitioner need not comply with the provisions of the Prisoner
Litigation Reform Act requirements for paying a partial fee, see United States v.
Simmonds, 111 F.3d 757 (10th Cir. 1997). However, because Mr. Del Duca also
failed to complete the appropriate form for an application for writ of habeas
corpus, we conclude that dismissal without prejudice was nonetheless justified.
We therefore conclude Mr. Del Duca has failed to demonstrate the denial of a
constitutional right by showing that the issues raised on his appeal are debatable
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among jurists, that a court could resolve the issues differently, or that the
questions deserve further proceedings. Consequently, we deny a certificate of
appealability and dismiss the appeal. 28 U.S.C. § 2253(c)(2); Lennox v. Evans.
87 F.3d 431 (10th Cir. 1996).
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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