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Lornes v. Hernandez

United States District Court, D. Colorado

August 12, 2014

WILLIAM LEE LORNES, also known as WILLIAM LEE LORNES the III, also known as WILLIAM, Applicant,
v.
HERNANDEZ, SHAFFER, MARTÍNEZ, AERONAL, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO WILLSON [sic], Respondents.

ORDER IMPOSING FILING RESTRICTIONS

LEWIS T. BABCOCK, Senior District Judge.

Applicant, William Lee Lornes, also known as William Lee Lornes the III and William, was incarcerated at the Denver County Jail when, acting pro se, he submitted to the Court on May 7, 2014, a pleading titled Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 1), an Inmate Motion Requesting to File Without Prepayment of Filing/Service Fees Pursuant to § 13-17.5-103, C.R.S. (ECF No. 2), and tendered a document titled "Finding and Order Concerning Inmate Motion Requesting Waiving Prepayment of Filing/Service Fees" (ECF No. 3).

Magistrate Judge Boyd N. Boland reviewed the documents and determined they were deficient. On May 8, 2014, he entered an order (ECF No. 5) directing Mr. Lornes to cure within thirty days certain enumerated deficiencies in the documents he filed. Magistrate Judge Boland directed Mr. Lornes to obtain, with the assistance of his case manager or the facility's legal assistant, the Court-approved forms for filing a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action and an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. The May 8 order directed Mr. Lornes to complete and submit these forms. Specifically, Mr. Lornes was ordered to submit an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in a Habeas Corpus Action, together with a certificate showing the current balance in his prison account, among curing other deficiencies. Alternatively, he was informed he could pay the $5.00 filing fee for a habeas corpus action.

Of the numerous motions Mr. Lornes filed seeking leave to proceed pursuant to § 1915, only the Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 18) filed on May 22, 2014, cured the deficiencies in the Inmate Motion Requesting to File Without Prepayment of Filing/Service Fees Pursuant to § 13-17.5-103, C.R.S. (ECF No. 2), and tendered document titled "Finding and Order Concerning Inmate Motion Requesting Waiving Prepayment of Filing/Service Fees" (ECF No. 3). Therefore, ECF No. 18 was granted. The following motions seeking leave to proceed pursuant to § 1915 were denied as moot: ECF Nos. 2, 6, 7, 8, 9, 15, 16, 17, 19, 25.

On May 22, 2014, Mr. Lornes filed an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 13) and an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 12), each of which was garbled and neither of which appeared to assert habeas corpus claims; and another Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 14), which appeared to assert habeas corpus claims but was an inappropriate form for a state prisoner to use to attack a state conviction. In the habeas corpus applications (ECF Nos. 12 and 13), Mr. Lornes appeared to be asserting civil rights claims pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement.

On June 19, 2014, Magistrate Judge Boland entered an order (ECF No. 30) directing Mr. Lornes to file an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Enclosed with the June 19 order was a copy of the Court-approved form Mr. Lornes was directed to use to assert his habeas corpus claims. A copy of the form was enclosed because it was apparent that Mr. Lornes could not or would not identify and use the proper form.

In the June 19 order to amend, Magistrate Judge Boland explained the difference between habeas corpus applications and civil rights complaints. "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); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) ("Petitions under § 2241 are used to attack the execution of a sentence, ... [while] § 2254 habeas and § 2255 proceedings, ... are used to collaterally attack the validity of a conviction and sentence."); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (discussing distinction between habeas corpus claims pursuant to § 2241 and conditions of confinement claims raised in civil rights actions). "It is well-settled that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens [v. Six Unknown Named Agents, 403 U.S. 388 (1971), ]... - not through federal habeas proceedings." Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011).

Magistrate Judge Boland explained that Mr. Lornes may pursue habeas corpus claims in the instant action attacking the validity of his conviction. He further explained that if Mr. Lornes intended to challenge the execution of his sentence, he must file a separate habeas corpus application pursuant to § 2241. He also explained that if Mr. Lornes intended to assert civil rights claims challenging the conditions of his confinement, he must file a separate civil rights action pursuant to § 1983. Magistrate Judge Boland made clear that Mr. Lornes may not proceed in the instant action by submitting any pleading other than the Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 the Court would mail him. He also made clear that Mr. Lornes may not name as Respondent any individual other than his custodian, i.e., the warden of the Denver County Jail.

On June 30, 2014, Mr. Lornes submitted an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 32). In the amended application submitted on June 30, Mr. Lornes asserted against multiple Respondents garbled claims concerning the conditions of his confinement.

Therefore, on July 7, 2014, the Court entered an order (ECF No. 33) denying the amended application and dismissing the action without prejudice for failure to comply with the directives of the June 19 order to amend. The judgment (ECF No. 34) was entered on the same day. The July 7 order and judgment were returned to the Court on July 14, 2014, as undeliverable, with "Released" and "RTS" stamped across the front of the envelope. See ECF No. 35. Mr. Lornes has failed to provide a current mailing address or otherwise respond to the July 7 orders.

As part of the July 7 dismissal order, Mr. Lornes was directed to show cause within thirty days why he should not be prohibited from filing new actions without either the representation of a licensed attorney admitted to practice in the United States District Court for the District of Colorado or the permission of the Court to proceed pro se. Mr. Lornes has failed to show cause as directed within the time allowed why filing restrictions should not be imposed against him.

The July 7 order pointed out that Mr. Lornes had initiated thirty-two habeas corpus and civil rights actions, including the instant action, in this Court since 2012, none of which he has been able to pursue in a proper manner, all of which have been dismissed:

1. Lornes v. Raiass, No. 12-cv-00638-LTB (D. Colo. Apr. 23, 2012), dismissed without prejudice for failure to cure deficiencies within the time allowed;
2. Lornes v. District 5, No. 12-cv-01462 (D. Colo. Aug. 3, 2012), dismissed without prejudice for failure to file an amended complaint as directed within the time allowed;
3. Lornes v. Distric [sic] #5, No. 12-cv-01463-LTB (D. Colo. Aug. 3, 2012), dismissed without prejudice for failure to file an amended complaint as directed within the time allowed;
4. Lornes v. MHCED, No. 12-cv-01464-LTB (D. Colo. Aug. 3, 2012), dismissed without prejudice for failure to file an amended complaint as directed within the time allowed;
5. Lornes v. Carpender, No. 12-cv-01465-LTB (D. Colo. July 19, 2012), dismissed without prejudice for failure to cure deficiencies within the time allowed;
6. Lornes v. Carpender, No. 12-cv-01466-LTB (D. Colo. June 5, 2012), dismissed without prejudice for failure to cure deficiencies within the time allowed;
7. Lornes v. Mental Health Corp., No. 12-cv-01467-LTB (D. Colo. Aug. 27, 2012), dismissed without prejudice for failure to comply with the pleading requirements of ...

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