Opinion
1:23-cv-00062-KWR-SCY
05-02-2023
JASON STALTER, Petitioner, v. VESTULA CURRY, et al, Respondents.
ORDER OF DISMISSAL
KEA W. RIGGS, UNITED STATES DISTRICT JUDGE
THIS MATTER is before the Court following Petitioner Jason Stalter's failure to amend his post-conviction pleading. Stalter is a state inmate at the Penitentiary of New Mexico and is proceeding pro se. His opening pleadings seek a sentence reduction under 18 U.S.C. § 3582. That statute permits the sentencing court to “reduce [a] term of imprisonment” of inmates in federal custody after the inmate has “fully exhausted all administrative rights to appeal a failure of the Bureau of Prisons to bring a motion on the defendant's behalf.” 18 U.S.C. § 3582(c)(1)(A). See also United States v. Wesley, 60 F.4th 1277 (10th Cir. 2023) (citing § 3582 and noting “the compassionate release statute ... permits a sentencing court to reduce a federal prisoner's sentence”). Statler is not a federal prisoner, and this Court did not impose his sentence. See Doc. 1 at 6; https://search.cd.nm.gov/history_detail. Accordingly, the Court “does not have authority to order [his] compassionate release from state custody.” Franco-Monserrate v. United States, 2022 WL 3139020, at *1 (D. Kan. Aug. 5, 2022) (collecting cases).
By an Order entered March 9, 2023, the Court explained these principles and dismissed the opening pleadings (Doc. 1, supplemented by Docs. 3, 4) without prejudice to seeking a sentence reduction in state court. See Doc. 6. The Court also granted leave to file a 28 U.S.C. § 2254 habeas petition in this case within thirty days of entry of the Order. Section 2254 is the “proper vehicle for a challenge to the validity of a [state] conviction or sentence” in Federal Court. Naves v. Bigelow, 565 Fed. App'x 678, 679 n. 1 (10th Cir. 2014). The Clerk's Office mailed Stalter a blank § 2254 petition, to assist with the amendment. Stalter was warned that the failure to timely comply would result in dismissal of this case without prejudice.
The deadline to file a § 2254 petition, if Stalter seeks such relief at this time, was April 8, 2023. Plaintiff did not return a completed petition or otherwise respond to the Order. Accordingly, the Court will dismiss this case without prejudice under Fed.R.Civ.P. 41 for failure to prosecute. Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir. 2003) (addressing Rule 41). The Court will also deny as moot Stalter's pending motion to proceed in forma pauperis (Doc. 2). Stalter must file a separate case, if he seeks § 2254 relief at a later time.
IT IS ORDERED that this civil case is DISMISSED WITHOUT PREJUDICE; and Stalter's pending motion to proceed in forma pauperis (Doc. 2) is DENIED AS MOOT.
IT IS SO ORDERED.