Opinion
Civil Action No. 12-cv-01451-BNB
06-06-2012
MIKE BARTOWSHESKI, Applicant, v. PAROLE BOARD MEMBERS, Respondent.
ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION
Applicant initiated this action by filing pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Applicant is challenging one or more decisions by the Colorado Parole Board denying him release on parole. The court must construe the application liberally because Applicant is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, Applicant will be ordered to file an amended application if he wishes to pursue his claims in this action.
The court has reviewed the application and finds that it is deficient. First, the named Respondent is not a proper Respondent. The law is well-established that the only proper respondent to a habeas corpus action is the applicant's custodian. See 28 U.S.C. § 2242; Rules 2(a), Rules Governing Section 2254 Cases in the United States District Courts; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). It appears that Applicant is incarcerated at the Colorado Territorial Correctional Facility. Therefore, the proper Respondent is the warden of that facility.
The court finds that the application also is deficient because the specific claims Applicant is asserting are not clear. In particular, it is not clear whether Applicant is challenging only the parole board's most recent decision denying him release on parole in July 2011 or whether Applicant also may be challenging another, prior decision of the Colorado Parole Board denying him release on parole.
Therefore, Applicant will be ordered to file an amended application that names a proper Respondent and that clarifies the claims he is asserting if he wishes to pursue his claims in this action. Accordingly, it is
ORDERED that Applicant 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 Applicant shall obtain the court-approved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 form (with the assistance of her case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Applicant fails within the time allowed to file an amended application as directed, the action will be dismissed without further notice.
DATED June 6, 2012, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge