Opinion
Civil Action No. 10-cv-02699-BNB.
November 18, 2010
ORDER
This matter is before the Court sua sponte. Applicant, Omar Ramirez, is a prisoner in the custody of the Colorado Department of Corrections and is currently incarcerated at the Centennial Correctional Facility in Canon City, Colorado. Mr. Ramirez initiated this action by filing a pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. He has paid the $5.00 filing fee.
On November 10, 2010, the Court directed Respondent to file a Preliminary Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies under Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Respondent has not yet filed a Preliminary Response.
On November 12, 2010, Mr. Ramirez filed a pro se Amended Application for a Writ of Habeas Corpus Pursuant to § 2254 and a letter to the Court. In the letter, Mr. Ramirez states that he "inadvertently filed a 28 U.S.C. 2241 in place of an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2254" and requests that the Court accept the § 2254 Application instead of the § 2241 Application. However, having reviewed both Applications, the Court finds that Mr. Ramirez's claims are properly asserted pursuant to 28 U.S.C. § 2241. This is because Mr. Ramirez's claims call into question the execution, and not the validity, of his sentence. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). More specifically, Mr. Ramirez challenges the procedures used at an administrative segregation hearing, and seeks release from administrative segregation, in addition to restoration of good time credits.
Mr. Ramirez cannot obtain relief under 28 U.S.C. § 2254, which is reserved for challenges to the validity of a state prisoner's underlying criminal conviction. Therefore, the Court will disregard the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed on November 12, 2010. In keeping with the November 10 Order to File a Preliminary Response, Respondent is directed to file a Preliminary Response that addresses the claims asserted in the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed by Mr. Ramirez on November 4, 2010. Accordingly, it is
ORDERED that the Court will disregard the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed on November 12, 2010 (Doc. # 6). It is
FURTHER ORDERED the Respondent shall file a Preliminary Response that addresses the claims raised in the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed on November 4, 2010 (Doc. # 1).
DATED November 18, 2010, at Denver, Colorado.