Opinion
Civil Action No. 13-cv-02603-BNB
2013-09-24
ALEX FRANK RODRIGUEZ, Petitioner, v. TRAVIS TRANI and ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
(The above civil action number must appear on all future papers sent to the court in this action. Failure to include this number may result in a delay in the consideration of your claims.)
ORDER DIRECTING PETITIONER TO CURE DEFICIENCIES
Petitioner has submitted an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and Motion and Affidavit for Leave to Proceed on Appeal Pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24 in a Criminal Case. The submitted documents are deficient, for the reasons discussed below. Moreover, the Court has reviewed Mr. Rodriguez's filings and it appears that he is asserting civil rights claims. It is unclear whether Mr. Rodriguez is also asserting habeas corpus claims.
"The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). By contrast, a civil rights claim pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 challenges the conditions of a prisoner's confinement and seeks monetary and injunctive relief. See McIntosh v. United States Parole Comm'n, 115 F.3d 809, 812 (10th Cir. 1997). Mr. Rodriguez will be directed to file either an Amended Application for Habeas Corpus Relief Pursuant to 28 U.S.C. § 2254 or a Prisoner Complaint on the court-approved form. If Petitioner files an Amended § 2254 Application, he may not include any civil rights claims.
Additionally, Mr. Rodriguez will be directed to file a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action or Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 on the court-approved form. Alternatively, if Mr. Rodriguez files a habeas action, he may instead pay the $5.00 filing fee, or, if he files a Prisoner Complaint (civil rights action), he may choose to pay the $350.00 filing fee plus a $50.00 administrative fee (for a total of $400). Accordingly, it is
ORDERED that Mr. Rodriguez cure the deficiencies designated above by doing one of the following: (1) filing an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 and either paying the $5.00 filing fee, or filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action within thirty (30) days from the date of this order; or, (2) filing a Prisoner Complaint and either paying the $400.00 filing and administrative fees, or filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 within thirty (30) days from the date of this order. It is
FURTHER ORDERED that Mr. Rodriguez shall obtain the court-approved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254, Prisoner Complaint, Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action, and Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 forms (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that if within the time allowed Mr. Rodriguez fails to cure the designated deficiencies the action will be dismissed without prejudice and without further notice. The dismissal shall be without prejudice.
DATED September 24, 2013, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge