Holloway v. Deham

Filing 8

ORDER To File An Amended Application, by Magistrate Judge Boyd N. Boland on 11/13/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02737-BNB
DONALD D. HOLLOWAY,
Applicant,
v.
DEBORAH DENHAM, Warden,
Respondent.

ORDER TO FILE AN AMENDED APPLICATION

Applicant, Donald D. Holloway, is a prisoner in the custody of the Federal Bureau
of Prisons at the Federal Correctional Institution in Englewood, Colorado. Applicant
filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,
ECF No. 1, seeking removal of his presentence reports from his BOP files and to “return
to court” for a “fair hearing” pursuant to the Sixth Amendment.
The Court must construe the Application liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. Applicant will be ordered
to file an Amended Application for the reasons stated below.
The purposes of an application for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2241 and a motion pursuant to 28 U.S.C. § 2255 are distinct and well established. “A
petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its
validity” and “[a] 28 U.S.C. § 2255 petition attacks the legality of detention.” Bradshaw

v. Story, 86 F.3d 164, 166 (10th Cir. 1996). A habeas corpus petition pursuant to 28
U.S.C. § 2241 “is not an additional, alternative, or supplemental remedy, to the relief
afforded by motion in the sentencing court under § 2255.” Williams v. United States,
323 F.2d 672, 673 (10th Cir. 1963) (per curiam). Instead, “[t]he exclusive remedy for
testing the validity of a judgment and sentence, unless it is inadequate or ineffective, is
that provided for in 28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir.
1965); see 28 U.S.C. § 2255(e).
A challenge to a presentence report is an attack on the validity of Applicant’s
sentence and is not properly asserted in a § 2241 action. If Applicant is claiming that
the BOP is misinterpreting his presentence report, then he may challenge the
misinterpretation in a § 2241 action. It is not clear from Applicant’s allegations that he is
attacking the presentence report or the BOP’s interpretation of the report. Applicant,
therefore, will be directed to amend the Application and state clearly the nature of his
claims. Applicant is further directed that if he is challenging the validity of the
presentence report he must identify the criminal case in which the alleged improper
presentence report was filed and state why it is improper. If Applicant is challenging the
execution of his sentence, he is directed to assert how the BOP is misinterpreting the
report. Accordingly, it is
ORDERED that within thirty days from the date of this Order Applicant file an
Amended Application that complies with this Order. It is
FURTHER ORDERED that Applicant shall obtain the Court-approved 28 U.S.C.
§ 2241 Application form (with the assistance of his case manager or the facility’s legal
assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
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FURTHER ORDERED that if Applicant fails within the time allowed to file an
Amended Application that clarifies the nature of his claims the action will be dismissed
without further notice.
DATED November 13, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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