Gutierrez v. United States of America
ORDER by Magistrate Judge Lourdes A. Martinez to Cure Defects by 5/15/2017. (atc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CIV 17-0402 JB/LAM
UNITED STATES OF AMERICA,
ORDER TO CURE DEFICIENCIES
THIS MATTER is before the Court on a letter from the pro se Petitioner Jesus
Gutierrez, which was docketed as a Petition for a Writ of Habeas Corpus Under 28 U.S.C.
§ 2241. [Doc. 1]. In his letter, Petitioner asks the Court to credit his federal sentence with the
14 months he spent in pretrial confinement. See id. A challenge to the execution of a sentence,
such as a request for pretrial confinement credit, should be brought under 28 U.S.C. § 2241 and
must be filed in the district in which the prisoner is confined.
See Bradshaw v. Story,
86 F.3d 164, 166 (10th Cir. 1996). Thus, the relief Petitioner seeks only is available, if at all, in
a § 2241 proceeding.
If Petitioner wishes to pursue relief under § 2241, he must comply with the rules
governing habeas corpus proceedings. Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts sets forth the “the minimum pleading requirements for the content
of a [habeas] petition” (Kilgore v. Attorney General of Colorado, 519 F.3d 1084, 1088
(10th Cir. 2008)), and it provides, in relevant part, as follows:
The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a
person authorized to sign it for the petitioner under 28 U.S.C.
Rule 2(c); see also Rule 1(b). Additionally, the petition must name as a respondent the officer
who currently has custody of the petitioner. See Rule 2(a); see also Rumsfeld v. Padilla,
542 U.S. 426, 436 (2004) (holding “that in habeas challenges to present physical confinement“core challenges”-the default rule is that the proper respondent is the warden of the facility
where the prisoner is being held”).
The filing fee for a habeas corpus proceeding is $5.00. See 28 U.S.C. § 1914(a). If
Petitioner wishes to pursue relief under 28 U.S.C. § 2241, he must pay the $5.00 filing fee or
submit an Application to Proceed in District Court Without Prepaying Fees or Costs pursuant to
28 U.S.C. § 1915.
Any papers that Petitioner files in response to this order must include the civil action
number (CIV 17-0402 JB/LAM). Failure to cure the designed deficiencies within thirty (30)
days of the date of this order may result in the dismissal of this proceeding without further
IT IS THEREFORE ORDERED that, within thirty (30) days of the date of this
order, Petitioner shall submit: (1) a § 2241 petition on the proper form that complies with Rule 2
of the Rules Governing Section 2254 Cases in the United States District Courts; and (2) the
$5.00 filing fee or an Application to Proceed in District Court Without Prepaying Fees or Costs.
IT IS FURTHER ORDERED that the Clerk is directed to mail to Petitioner, together
with a copy of this Order, two copies each of a form § 2241 petition with instructions and an
Application to Proceed in District Court Without Prepaying Fees or Costs.
IT IS SO ORDERED.
LOURDES A. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
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