Cortez v. Kline et al

Filing 3

ORDER DIRECTING APPLICANT TO CURE DEFICIENCIES by Magistrate Judge Gordon P. Gallagher on 6/16/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01267-GPG
RICHARD R. CORTEZ,
Applicant,
v.
K. KLINE,
KIT CARSON CORRECTIONAL CENTER,
Respondents.

ORDER DIRECTING APPLICANT TO CURE DEFICIENCIES

Applicant, Richard R. Cortez, is in the custody of the Colorado Department of
Corrections (CDOC) at the Kit Carson Correctional Facility in Burlington, Colorado.
Mr. Cortez initiated this action by filing an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). He has paid the $5.00 filing fee.
In the § 2241 Application, Mr. Cortez claims that: (1) he was denied the effective
assistance of counsel at trial; (2) there was insufficient evidence to support his state
criminal conviction(s); (3) he was not competent to stand trial; (4) the trial court admitted
unreliable identification evidence at trial; and, (5) he was entitled to a jury trial on the
habitual criminal counts. For relief, he asks that his state court convictions be vacated
and that he be afforded a new trial.
“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). All of Mr. Cortez’s claims
challenge the validity of his state court convictions and sentence(s). Therefore,
Applicant must seek relief under 28 U.S.C. § 2254, not § 2241.
After pursuant to D.C.COLO.LCivR 8.1(a), the Court has determined that the
submitted document is deficient as described in this order. Mr. Cortez will be directed
to cure the following if he wishes to pursue his claims. Any papers that the Mr. Cortez
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
is missing certificate showing current balance in prison account
is missing required financial information
is missing an original signature by the prisoner

(1)
(2)
(3)
(4)
(5)
(6)

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:

(7)
(8)
(9)

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

X

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

__

(17)

is not submitted
is not on proper form (must use the court-approved form for filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254).
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

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ORDERED that Mr. Cortez cure the deficiencies designated above within thirty
(30) days from the date of this order. Any papers that Mr. Cortez files in response to
this order must include the civil action number on this order. It is
FURTHER ORDERED that Mr. Cortez, 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. § 2254 at
www.cod.uscourts.gov. Applicant shall re-submit his claims on the court-approved
form. It is
FURTHER ORDERED that, if Mr. Cortez 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 June 16, 2015, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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