Gilmore v. Dunbar

Full title: REGINALD GILMORE, Applicant, v. GEORGE DUNBAR, B.V.C.C. Associate Warden…

Court: United States District Court, D. Colorado

Date published: Oct 13, 2005

Civil Action No. 05-cv-01841-OES (D. Colo. Oct. 13, 2005)

Opinion

Civil Action No. 05-cv-01841-OES.

October 13, 2005

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

O. SCHLATTER, Magistrate Judge

Applicant Reginald Gilmore is a prisoner in the custody of the Colorado Department of Corrections at the Buena Vista Minimum Center at Buena Vista, Colorado. Mr. Gilmore has filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court must construe the application liberally because Mr. Gilmore is representing himself. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). However, the court should not be the pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Gilmore will be ordered to file an amended application.

Mr. Gilmore was convicted in the El Paso County District Court and he is serving a sentence of twenty-four years in prison. He asserts three claims for relief in the application. However, he fails to allege specific facts in support of his claim that he was denied a fair trial as the result of prosecutorial misconduct. Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires that Mr. Gilmore go beyond notice pleading. See Blackledge v. Allison, 431 U.S. 63, 75 n. 7 (1977). He must allege specific facts to support each asserted claim. Naked allegations of constitutional violations are not cognizable under 28 U.S.C. § 2254. See Ruark v. Gunter, 958 F.2d 318, 319 (10^th Cir. 1992) (per curiam). Therefore, Mr. Gilmore will be ordered to file an amended application to clarify the claims he is asserting. Accordingly, it is

ORDERED that Mr. Gilmore file within thirty (30) days from the date of this order an amended habeas corpus application that complies with this order. It is

FURTHER ORDERED that the clerk of the court mail to Mr. Gilmore, together with a copy of this order, two copies of the following form: Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. It is

FURTHER ORDERED that, if Mr. Gilmore fails within the time allowed to file an amended application as directed, the application will be denied and the action will be dismissed without further notice.