Clark v. No Named Respondents
Filing
3
ORDER Directing Applicant to Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 7/28/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02082-BNB
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
CHRISTOPHER JOE CLARK,
Applicant, named as Petitioner,
v.
[NO NAMED RESPONDENT],
Respondent.
ORDER DIRECTING APPLICANT TO CURE DEFICIENCIES
Applicant, Christopher Joe Clark, is a prisoner in the Colorado Department of
Corrections who currently is incarcerated at the correctional facility in Sterling,
Colorado. He submitted pro se a “Petition for Writ of Habeas Corpus” appearing to
challenge the execution of his sentence (ECF No. 1). The clerk of the Court docketed
the petition as filed pursuant to 28 U.S.C. § 2254.
However, if Mr. Clark is attempting to challenge the execution of his state court
sentence, the claims must be asserted in a habeas corpus application pursuant to §
2241. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). If Mr. Clark is
attempting to challenge the validity of his state court conviction and sentence, the
claims must be asserted in a habeas corpus application pursuant to § 2254. See id.
As part of the court’s review pursuant to D.C.COLO.LCivR 8.1(b), the court has
determined that the submitted documents are deficient as described in this order.
Applicant will be directed to cure the following if he wishes to pursue any claims in this
court in this action. Any papers that Applicant files in response to this order must
include the civil action number on this order.
28 U.S.C. § 1915 Motion and Affidavit:
is not submitted
(1)
X
(2)
is missing affidavit
(3)
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
(4)
X
(5)
is missing required financial information
(6)
is missing an original signature by the prisoner
(7)
is not on proper form (must use the court’s current form)
(8)
names in caption do not match names in caption of complaint, petition or
habeas application
other: § 1915 motion and affidavit and certificate showing current balance
(9)
X
in prison account only are necessary if $5.00 filing fee is not paid in
advance
Complaint, Petition or Application:
(10)
is not submitted
(11)
X
is not on proper form
(12)
is missing an original signature by the prisoner
is missing page nos.
(13)
(14)
uses et al. instead of listing all parties in caption
(15)
names in caption do not match names in text
(16) __
addresses must be provided for all defendants/respondents in “Section A.
Parties” of complaint, petition or habeas application
other: The only proper Respondent in a habeas corpus action is
(17)
X
Applicant’s current warden, superintendent, jailer or other custodian.
Accordingly, it is
ORDERED that Applicant cure the deficiencies designated above within thirty
(30) days from the date of this order. Any papers that Applicant files in response to
this order must include the civil action number on this order. It is
FURTHER ORDERED that Applicant shall obtain the court-approved form for
filing a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. §
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1915 in a Habeas Corpus Action (with the assistance of his case manager or the
facility’s legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov, and use that form in curing the designated deficiencies. It is
FURTHER ORDERED that Applicant also obtain with the assistance of his case
manager or the facility’s legal assistant the Court-approved form for filing an Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 if Applicant is challenging the
execution of his sentence or an Application for Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2254 if Applicant is challenging the validity of his conviction and sentence, and
use the appropriate form in filing the habeas corpus application. It is
FURTHER ORDERED that Applicant shall not file both a habeas corpus
application pursuant to § 2241 and a habeas corpus application pursuant to § 2254. It
is
FURTHER ORDERED that, if Applicant fails to cure the designated deficiencies
within thirty (30) days from the date of this order, the action will be dismissed
without further notice. The dismissal shall be without prejudice.
DATED July 28, 2014, at Denver, Colorado.
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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