Cordova v. Colorado Dept. of Corrections

Filing 4

ORDER Directing Petitioner to Cure Deficiencies, by Magistrate Judge Gordon P. Gallagher on 1/22/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00135-GPG
(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.)
MARCUS F. CORDOVA,
Petitioner,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
Respondent.

ORDER DIRECTING PETITIONER TO CURE DEFICIENCIES

Petitioner, Marcus F. Cordova, is detained in the Denver County Jail. He initiated
this action on January 20, 2015, by filing a Motion to Hear Habeas Corpus Motion and a
Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action. In the Habeas Corpus Motion, Mr. Cordova challenges the
revocation of his parole and his reincarceration.
“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). By contrast,
It appears that Mr. Cordova is attempting to challenge the execution of his state
court sentence. As such, his claims must be asserted in a habeas corpus application

pursuant to § 2241. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); see
also United States v. Furman, 112 F.3d 435, 438 (10th Cir.1997) (noting that issues
concerning “parole procedure[ ] go to the execution of sentence and, thus, should be
brought against defendant's custodian under 28 U.S.C. § 2241”).
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.
Plaintiff will be directed to cure the following if he wishes to pursue his claims. Any
papers that Plaintiff 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
is missing affidavit
is missing certified copy of prisoner's trust fund statement for the 6-month
period immediately preceding this filing (necessary if filing a habeas
corpus application)
is missing certificate showing current balance in prison account
is missing required financial information
is missing an original signature by the prisoner
is not on proper form (must use the Court’s form for habeas applications)
names in caption do not match names in caption of complaint, petition or
habeas application
other:

(1)
(2)
(3)

(4)
(5)
(6)
(7)
(8)
(9)

Complaint, Petition or Application:
(10)
(11)

xx

(12)
(13)
(14)
(15)
(16)

__

is not submitted
is not on proper form (must use the court-approved form for filing a
habeas corpus application under 28 U.S.C. § 2241)
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
2

(17)

xx

other: Applicant must name his custodian as the Respondent.

Accordingly, it is
ORDERED that Mr. Cordova cure the deficiencies designated above within
thirty (30) days from the date of this order. Any papers that Mr. Cordova files in
response to this order must include the civil action number on this order. It is
FURTHER ORDERED that Mr. Cordova shall obtain the court-approved form for
filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (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 the form in curing the
designated deficiencies. It is
FURTHER ORDERED that, if Mr. Cordova 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: January 22, 2015, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

3