Belcher v. El Paso Cnty. Dist. Court

Full title: MILTON BELCHER, Applicant, v. EL PASO COUNTY DISTRICT COURT, COLORADO…

Court: UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Aug 24, 2012

Civil Action No. 12-cv-02248-BNB (D. Colo. Aug. 24, 2012)

Opinion

Civil Action No. 12-cv-02248-BNB

08-24-2012

MILTON BELCHER, Applicant, v. EL PASO COUNTY DISTRICT COURT, COLORADO, Respondent.

Boyd N. Boland

ORDER DIRECTING APPLICANT TO CURE DEFICIENCIES

Applicant, Milton Belcher, is a prisoner in the custody of the Colorado Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado. Mr. Belcher, acting pro se, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 challenging a state court sentence.

The Court has reviewed the Application and finds that it is deficient. First, the claims Mr. Belcher raises more properly are asserted pursuant to 28 U.S.C. § 2254, because he is challenging the validity, and not the execution, of his sentence in the El Paso County District Court. Mr. Belcher specifically asserts that he was denied 604 days of presentence credit by the sentencing court, which violates his right to due process. Therefore, Mr. Belcher will be directed to file his claims on a Court-approved form used in filing § 2254 actions.

Mr. Belcher also has failed either to pay the $5.00 filing fee or in the alternative submit a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Action.

Finally, the Court also notes that Mr. Belcher names El Paso County District Court as a respondent. The law is well-established that the only proper respondent to a habeas corpus action is the habeas applicant's custodian, see 28 U.S.C. § 2242; Rules 2(a) and 1(b), Rules Governing Section 2254 Cases in the United States District Courts; and Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Mr. Belcher must name his custodian in the caption of the application. Accordingly, it is

ORDERED that within thirty days from the date of this Order Mr. Belcher cure the noted deficiencies. It is

FURTHER ORDERED that Mr. Belcher shall obtain the Court-approved form used in filing a 28 U.S.C. § 2254 action and a 28 U.S.C. § 1915 Motion and Affidavit, along with the applicable instructions, at www.cod.uscourts.gov. It is

FURTHER ORDERED that, if Mr. Belcher fails to cure the designated deficiencies within thirty days from the date of this Order, the action will be dismissed without further notice.

DATED August 24, 2012, at Denver, Colorado.

BY THE COURT:

Boyd N. Boland

United States Magistrate Judge