Free Order - District Court of Colorado - Colorado

Case 1:01-cv-01364-MSK-MJW

Document 144

Filed 08/17/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Honorable M arcia S. Krieger

Civil Action No. 01-cv-01634-M SK-M JW DONALD A. PENROD, Petitioner, v. STEVE HARGETT, and KEN SALAZAR, Attorney General of the State of Colorado, Respondent. ______________________________________________________________________________ ORDER S TRIKING " NOTICE OF FILING" ______________________________________________________________________________ THIS MATTER comes before the Court pursuant to the Petitioner's pro se " Notice to the Court That He Is Filing Numerous M otions . . . ."(# 143). The Petitioner commenced this action on July 18, 2001, seeking a writ of habeas corpus (# 2). After extensive proceedings, on February 25, 2003, this Court denied (# 134) the Petition as time-barred and unexhausted. The Petitioner sought a certificate of appealability, but on December 24, 2003, the Court of Appeals denied (# 142) that request, effectively rendering the dismissal of the Petition final. The Petitioner has now filed the instant " Notice,"reciting various allegations of conspiracy among the judges of this Court and the Tenth Circuit, along with numerous other

Case 1:01-cv-01364-MSK-MJW

Document 144

Filed 08/17/2005

Page 2 of 2

parties, and requesting various items of relief, including money damages for wrongful imprisonment and appointment of a special prosecutor. If the Petitioner's " Notice"is construed as a motion pursuant to Fed. R. Civ. P. 60(b) to alter the Court's judgment dismissing the Petition, it is both untimely, having been filed more than a year after the judgment was entered, and effectively barred by the December 24, 2003 ruling by the Court of Appeals. In short, this habeas proceeding has become final. If the Petitioner's " Notice"is construed as a new lawsuit, it cannot be commenced simply by filing new materials under the present case number. Rather, the Petitioner must proceed to commence a new lawsuit pursuant to Fed. R. Civ. P. 3 and 28 U.S.C. § 1915. In either event, the Petitioner's " Notice"is not properly filed in this action. Accordingly, the Notice (# 143) is S TRICKEN. Because this matter has been finally concluded, no further pleadings shall be filed in this matter. Dated this 17th day of August, 2005. BY THE COURT:

M arcia S. Krieger United States District Judge

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