Whatley v. No Named Respondent

Filing 3

ORDER Directing Petitioner To Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 07/01/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01818-BNB
DARIN WHATLEY,
Petitioner,
v.
[NO RESPONDENT NAMED],
Respondent.

ORDER DIRECTING PETITIONER TO CURE DEFICIENCIES

Petitioner, Darin Whatley, initiated this action on June 26, 2014 by submitting a
Letter to the Court concerning the filing of a writ of habeas corpus. Because Mr.
Whatley appears to seek habeas corpus relief in this Court, the instant action has been
commenced.
“The essence of habeas corpus is an attack by a person in custody upon the
legality of that custody, and . . . the traditional function of the writ is to secure release
from illegal custody.” See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). “Petitions
under § 2241 are used to attack the execution of a sentence, see Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir.1996), while a petition under § 2254 challenges the validity of a
state court conviction or sentence. See McIntosh v. United States Parole Comm’n, 115
F.3d 809, 811 (10th Cir. 1997).
After pursuant to D.C.COLO.LCivR 8.1(b), the Court has determined that the
submitted document is deficient as described in this order. Mr. Whatley will be directed
to cure the following if he wishes to pursue his claims. Any papers that the Mr. Whatley

files in response to this order must include the civil action number on this order.
28 U.S.C. § 1915 Motion and Affidavit:
(1)
(2)
(3)

X

(4)

X

(5)
(6)
(7)
(8)
(9)

X

is not submitted
is missing affidavit
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing
is missing certificate showing current balance in prison account
(necessary if filing a habeas corpus application)
is missing required financial information
is missing an original signature by the prisoner
is not on proper form (must use the court’s current form):
names in caption do not match names in caption of complaint, petition or
habeas application
other: Mr. Whatley may pay the $5.00 filing fee, instead of submitting a
§ 1915 Motion and Affidavit.

Complaint, Petition or Application:
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)

X

__

is not submitted
is not on proper form (must use the court’s current form)
is missing an original signature by the prisoner
is missing page nos.
uses et al. instead of listing all parties in caption
names in caption do not match names in text
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
other:

Accordingly, it is
ORDERED that Mr. Whatley cure the deficiencies designated above within
thirty (30) days from the date of this order. Any papers that Mr. Whatley files in
response to this order must include the civil action number on this order. It is
FURTHER ORDERED that Mr. Whatley, with the assistance of his case manager
or the facility’s legal assistant, shall obtain the Court-approved form for filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (execution of
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sentence), or the form for filing an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 (validity of sentence); and a Prisoner’s Motion and Affidavit for Leave
to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action, along with the
applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Whatley fails to cure the designated
deficiencies within thirty (30) days from the date of this order, this action will be
dismissed without further notice. The dismissal shall be without prejudice.
DATED: July 1, 2014, at Denver, Colorado.
BY THE COURT:

s/ Boyd N. Boland
United States Magistrate Judge

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