Opinion
Civil Action No. 09-cv-01343-ZLW-BNB.
June 1, 2010
ORDER
This matter arises on the Applicant's Motion Requesting Transfer [Doc. #37, filed 04/19/2010] (the "Motion"). The Motion is DENIED.
The Applicant filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Doc. #2] (the "Application") on June 9, 2009. The Application challenges the constitutionality of the Applicant's state criminal trial in El Paso County, Colorado. At the time he filed his Application, the Applicant was confined at the Arrowhead Correctional Facility under Warden Steve Hartley. Motion, ¶ 1. On August 17, 2009, the Applicant was transferred to the Kit Carson Correctional Center under Warden Hoyt Brill. Id. at ¶¶ 2-3. The Applicant requests that he be returned to the Arrowhead Correctional Facility because he "is contesting his unconstitutional confinement and sentence to Custodian Steve Hartley. . . ." Id. at ¶¶ 3-4.
The authority to transfer a prisoner lies with the Department of Corrections, not with the courts. C.R.S. §§ 16-11-308(5); 17-1-105(a). An application for a writ of habeas corpus must name as the respondents both the state officer who has present official custody of the applicant and the attorney general of the state whose action subjects him to future custody. Rules Governing Section 2254 Cases in the United States District Courts, Rule 2(b) and the Advisory Committee Notes, 1976 Adoption, regarding Rule 2(b) (made applicable to Section 2241 cases by Rule 1(b) of the Rules Governing Section 2254 Cases). Therefore, the Application should name Warden Hoyt Brill as a respondent instead of Warden Steve Hartley. Accordingly,
IT IS ORDERED that the Motion is DENIED.
IT IS FURTHER ORDERED that Warden Hoyt Brill shall be substituted as a respondent for Warden Steve Hartley.