Lamar v. Archuleta

Filing 4

ORDER DIRECTING APPLICANT TO CURE DEFICIENCY by Magistrate Judge Gordon P. Gallagher on 1/12/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00068-GPG
ANDREW MARK LAMAR,
Applicant,
v.
STATE OF COLORADO,
CYNTHIA COFFMAN, Attorney General State of Colorado, and
RICK RAEMISCH, Executive Director, Colorado Department of Corrections,
Respondents.

ORDER DIRECTING APPLICANT TO CURE DEFICIENCY

Applicant, Andrew Mark Lamar, is in the custody of the Colorado Department of
Corrections (CDOC) at the Fremont Correctional Facility in Canon City, Colorado.
Mr. Lamar initiated this action by filing an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2241, on the incorrect form, and a Prisoner=s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 in a Habeas Action.
Mr. Lamar is serving an indeterminate sentence under the Colorado Sex
Offenders Lifetime Supervision Act, COLO. REV. STAT. §§18-1.3-1001, et seq. In the
Application, Mr. Lamar asserts that the Colorado Parole Board’s November 2, 2015
decision to deny parole, following the expiration of the minimum term of his sentence,
violated his Fifth Amendment right against self-incrimination, and his Fourteenth
Amendment due process rights. For relief, he seeks immediate release from
confinement.

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. Brim will be directed to
cure the following if he wishes to pursue his claims. Any papers that the Mr. Brim 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)

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

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

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:

(9)

Complaint, Petition or Application:
(10)
(11) X
(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 ASection A.
Parties@ of complaint, petition or habeas application
other: Applicant must name the warden of his current facility as a
Respondent. Rick Raemisch, the Director of the CDOC, is not a proper
respondent.

Mr. Lamar is reminded that A[t]he 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). APetitions under ' 2241 are used to attack the execution of a sentence, see
2

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).

Mr. Lamar therefore may

not challenge the validity of his indeterminate sentence in a § 2241 Application.
Accordingly, it is
ORDERED that Mr. Lamar cure the deficiency designated above within thirty (30)
days from the date of this order. Any papers that Mr. Lamar files in response to this
order must include the civil action number on this order. It is
FURTHER ORDERED that Mr. Lamar, 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, at www.cod.uscourts.gov. It
is
FURTHER ORDERED that, if Mr. Lamar 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 12, 2016, at Denver, Colorado.
BY THE COURT:

s/Gordon P. Gallagher
United States Magistrate Judge

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