Morgan v. United States of America

Filing 6

ORDER. Petitioner either shall pay the $5.00 filing fee or file an application seeking leave to proceed in forma pauperis, with the required signature and certified account information and on the Court's approved form, no later than August 25, 2017. Petitioner shall resubmit his habeas petition on the Court's approved § 2254 form, properly signed and including all applicable information, no later than August 25, 2017. Signed by Magistrate Judge Charles B Goodwin on 08/04/2017. (jb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAVID BRIAN MORGAN,
Petitioner,
v.
UNITED STATES,
Respondent.

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Case No. CIV-17-797-D

ORDER
The Court is in receipt of the documents Petitioner David Brian Morgan has
tendered in the above referenced matter. However, the documents are deficient in the areas
indicated below:
X

The petition is not accompanied by payment of the $5.00 filing fee or an
application for leave to proceed in forma pauperis application.

X

The petition is not on the proper form.
The filing fee for a petition for writ of habeas corpus is $5.00, as noted on the

Court’s current fee schedule. A petitioner must either pay the filing fee or submit an
application requesting leave to proceed in forma pauperis—i.e., to proceed without full
prepayment of this fee. If a petitioner seeks to proceed in forma pauperis, he or she must
submit an application on the form approved and supplied by this Court. LCvR 3.2, 3.3(a),
3.5; R. 3(a)(2), Rules Governing Section 2254 Cases in the United States District Courts
(“Section 2254 Rules”). Further, an applicant who is incarcerated is required by this
Court’s Local Civil Rules to provide the Court with certain information regarding his or
her prison bank account(s), which must be certified by an appropriate prison official:

In the case of a prisoner, such application must also include a certificate
executed by an authorized officer of the appropriate penal institution stating:
(1) the amount of money or securities currently on deposit to the prisoner’s
credit in any institutional account; (2) the average monthly deposits to the
prisoner’s account for the 6-month period immediately preceding the filing
of the action; and (3) the average monthly balance in the prisoner’s account
for the 6-month period immediately preceding the filing of the action.
LCvR 3.3(b).
Regarding the Petition itself, the filing is titled “Post Conviction Motion to File §
2241(c), Prosecutorial Misconduct.” See Pet. (Doc. No. 1) at 1. But Petitioner’s filing, in
substance, challenges the validity of his state-court criminal conviction and sentence rather
than the execution of his prison sentence. See Pet. at 1-3 (challenging the imposition of
the conviction sentence imposed by the District Court of Oklahoma County due to illegality
in the jury-summoning process and the length of incarceration ordered by the trial court).
Petitioner’s claims, therefore, appear to be properly brought pursuant to 28 U.S.C. § 2254,
not § 2241. See Yellowbear v. Wyo. Att’y Gen., 525 F.3d 921, 924 (10th Cir. 2008)
(“Section . . . 2241 is a vehicle for . . . attacking the execution of a sentence. A § 2254
petition, on the other hand, is the proper avenue for attacking the validity of a conviction
and sentence.” (citations omitted)). Further, Petitioner’s filing does not use the Court’s
approved form and fails to provide the Court with the relevant information needed to
address Petitioner’s claims. See Pet. at 1-3; LCvR 9.2(a).
ACCORDINGLY, IT IS HEREBY ORDERED that Petitioner either shall pay the
$5.00 filing fee or file an application seeking leave to proceed in forma pauperis, with the
required signature and certified account information and on the Court’s approved form, no
later than August 25, 2017. See LCvR 3.3, 3.5. In addition, Petitioner shall resubmit his
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habeas petition on the Court’s approved § 2254 form, properly signed and including all
applicable information, no later than August 25, 2017.
Failure to comply with any part of this Order may result in the striking of the Petition
and dismissal of this action. See LCvR 9.2(a). The Clerk of the Court is directed to send
the applicable in forma pauperis form and a 28 U.S.C. § 2254 petition form to Petitioner
along with this Order.
IT IS SO ORDERED this 4th day of August, 2017.

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