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Pope v. Killian

United States District Court, D. Nevada

April 2, 2018

Kevin Donald Pope, Petitioner
v.
Warden Janice Killian, et al., Respondents

          ORDER DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS , [ECF No. 1]

          Jennnifer A. Dorsey U.S. District Judge

         Adjudicated habitual criminal and pro se petitioner Kevin Donald Pope was released on parole after he served some prison time for escape.[1] He moves for leave to proceed in forma pauperis and petitions-under “emergency” status-for post-conviction relief, invoking 28 U.S.C. § 2241 and 28 U.S.C. § 2255.[2] A motion under § 2241 “generally challenges the execution of a federal prisoner's sentence, including such matters as the administration of parole, computation of a prisoner's sentence by prison officials, prison disciplinary actions, prison transfers, type of detention and prison conditions, ”[3] while “motions to contest the legality of a [federal] sentence must be filed under § 2255 in the sentencing court.”[4]

         Pope challenges his detention resulting from the execution of an arrest warrant issued by the U.S. Parole Commission for alleged parole violations.[5] The warrant indicates that Pope was released on parole January 3, 2017, after serving 984 days of his five-year sentence for the crime of escape with 706 days remaining to be served.[6] Pope contends that, despite the Parole Commission's assertion, he has fully served his sentence.[7]

         As an initial matter, I find that the petition is properly brought under § 2241 because it appears to be a challenge to the computation of Pope's federal sentence. So, it appears that I have jurisdiction over the petitioner as the custodial court, but I reserve my right to revisit this finding at a later time if at any point it appears that the motion is more appropriately a § 2255 motion.

         With that said, Pope has not properly commenced this action because, although he has requested leave to proceed in forma pauperis, he has not submitted the necessary pauper application. A fully completed pauper application will include a properly executed financial certificate and an inmate account statement for the past six months.[8] Pope has failed to submit a pauper application, let alone one with the required financial documents.

         Accordingly, IT IS HEREBY ORDERED that Pope's motion for leave to proceed in forma pauperis [ECF No. 1] is DENIED without prejudice. Pope has until May 2, 2018, to either: (1) pay the $5.00 filing fee, or (2) file a fully completed pauper application with the necessary financial records. If Pope fails to complete one of these actions by this court-ordered deadline, this action will be DISMISSED without further prior notice.

         I also find that Pope has not filed this petition on the court's form for § 2241 petitions. So, IT IS FURTHER ORDERED that Pope has until May 2, 2018, to FILE an AMENDED petition on the court's form. He must clearly title the amended petition by writing the word “AMENDED” above “Petition for a Writ of Habeas Corpus” on page 1, and he must write the docket number, 2:18-cv-00510-JAD-VCF, in the space to the right of the caption. Under Local Rule LR 15-1, the amended petition must be complete in itself without reference to previously filed papers. That means that the amended petition completely replaces the first-in-time-filed, deficient petition, so Pope must include all of his claims in the amended petition if he wants me to consider them. If Pope does not file an amended petition on the proper form by this court-ordered deadline, this action will be DISMISSED without further prior notice

         The Clerk of Court is directed to SEND to Pope a copy of his papers in this action, two copies of an in forma pauperis application form for incarcerated persons, one copy of the instructions for the pauper application, and two copies of the court's form for § 2241 habeas petitions.

---------

Notes:

[1] ECF No. 1-1 at 8.

[2] ECF No. 1-1.

[3] Jiminian v. Nash, 245 F.3d 144, 146 (2d Cir. 2001); see also Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000) (“Generally, motions to contest the legality of a [federal] sentence must be filed under § 2255 in the sentencing court, while petitions that challenge the manner, location, or conditions of a sentence's execution ...


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