Opinion
Civil Action No. 08-cv-00692-MSK-KLM.
August 12, 2008
ORDER
This matter is before the Court on several motions filed by Applicant [Docket Nos. 58, 59, 60, 61, 62, 63, 64, 65, 66] and [Docket Nos. 73, 74, 75, 76, 77].
It appears that in the first series of motions [Docket Nos. 58-66], Applicant may be seeking to substitute either Larry Reid or Mike Reid for the current Respondent, Joan Smith. However, pursuant to Fed.R.Civ.P. 25(d), "[a]n action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer's successor is automatically substituted as a party. . . . The court may order substitution at any time, but the absence of such an order does not affect the substitution." Accordingly, Applicant is directed that any further motions to substitute are unnecessary as the substitution of the appropriate respondent will occur automatically. Further, to the extent that the Motions attempt to substitute anyone other than the current warden of San Carlos Correctional Facility, Larry Reid, IT IS HEREBY ORDERED that the Motions [Docket Nos. 58, 59, 60, 61, 62, 63, 64, 65, 66] are DENIED.
It is FURTHER ORDERED that Larry Reid, the current warden of San Carlos Correctional Facility, is substituted as the Respondent on Applicant's Petition for Habeas Corpus.
In his second series of motions [Docket Nos. 73-77], Applicant appears to attempt to file both a Third Amended Petition and a Fourth Amended Petition. However, the Court notes that Applicant was granted leave to file a Second Amended Petition by District Judge Marcia S. Krieger's Order, dated July 16, 2008 [Docket No. 43]. Applicant filed his Second Amended Petition [Docket No. 70], which was accepted for filing by the Court on July 30, 2008 [Docket No. 69]. Applicant has not been granted leave to file any subsequent petitions. Further, the Court finds that Applicant's Motions are unintelligible, repetitive, do not clearly explain the claims Applicant seeks to add, and do not comply with Local Rule 7.1(H). Although the Court gives Applicant the benefit of liberal pleading interpretation given his pro se status, the Court cannot act as Applicant's advocate or provide relief where Applicant has neither clearly stated the relief he seeks nor the legal authority for such relief. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) ("The broad reading of the plaintiff's [pleading] does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based."); Abdelsamed v. United States, No. Civ. A. 01-N-1774(CBS), 2002 WL 31409521, at *10 (D. Colo. Sept. 17, 2002) (unpublished decision) ("While mindful of the liberal treatment accorded pro se pleading, it is not the responsibility of the court or defendants to decipher prolix allegations in order to divine [Plaintiff's] claims."). Accordingly, IT IS HEREBY ORDERED that the Motions [Docket Nos. 73, 74, 75, 76, 77] are DENIED.
Finally, the Court must address Applicant's numerous, repetitive and largely unintelligible filings. Applicant is again notified that his excessive motions and filings delay the resolution of his case. Further, as this action is a petition for writ of habeas corpus brought pursuant to 28 U.S.C. § 2241, many of the actions that Applicant attempts to take, and the Federal Rules of Civil Procedure that Applicant cites, are not applicable to this case. The Court instructs Applicant that his case, like all petitions for writs of habeas corpus, will proceed as follows: (1) Applicant's Second Amended Petition was accepted for filing as of July 30, 2008; (2) Respondents shall file a response to the Second Amended Petition on or before September 13, 2008; and (3) Applicant may then file a traverse (i.e., reply) to the response. Applicant is directed to the Rules Governing Section 2254 Cases in the United States District Courts, which govern his habeas corpus petition although it is brought pursuant to 28 U.S.C. § 2241. See, e.g., Boutwell v. Keating, 399 F.3d 1203, 1211 (10th Cir. 2005) (noting that "[i]n applications for habeas corpus in cases not covered by [§ 2254], these rules may be applied at the discretion of the United States district court."). A copy of the rules is attached.
United States Code Annotated Currentness
Title 28. Judiciary and Judicial Procedure (Refs Annos)
Part VI. Particular Proceedings
Chapter 153. Habeas Corpus (Refs Annos)
Rules Governing Section 2254 Cases in the United States District Courts (Refs Annos)
Rule 1. Scope
(a) Cases Involving a Petition under 28 U.S.C. § 2254. These rules govern a petition for a writ of habeas corpus filed in a United States district court under 28 U.S.C. § 2254 by:
(1) a person in custody under a state-court judgment who seeks a determination that the custody violates the Constitution, laws, or treaties of the United States; and
(2) a person in custody under a state-court or federal-court judgment who seeks a determination that future custody under a state-court judgment would violate the Constitution, laws, or treaties of the United States.
(b) Other Cases. The district court may apply any or all of these rules to a habeas corpus petition not covered by Rule 1(a).
Rule 2. The Petition
(a) Current Custody; Naming the Respondent. If the petitioner is currently in custody under a state-court judgment, the petition must name as respondent the state officer who has custody.
(b) Future Custody; Naming the Respondents and Specifying the Judgment. If the petitioner is not yet in custody — but may be subject to future custody — under the state-court judgment being contested, the petition must name as respondents both the officer who has current custody and the attorney general of the state where the judgment was entered. The petition must ask for relief from the state-court judgment being contested.
(c) Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and
(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.
(d) Standard Form. The petition must substantially follow either the form appended to these rules or a form prescribed by a local district-court rule. The clerk must make forms available to petitioners without charge.
(e) Separate Petitions for Judgments of Separate Courts. A petitioner who seeks relief from judgments of more than one state court must file a separate petition covering the judgment or judgments of each court.
Rule 3. Filing the Petition; Inmate Filing
(a) Where to File; Copies; Filing Fee. An original and two copies of the petition must be filed with the clerk and must be accompanied by:
(1) the applicable filing fee, or
(2) a motion for leave to proceed in forma pauperis, the affidavit required by 28 U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of confinement showing the amount of money or securities that the petitioner has in any account in the institution.
(b) Filing. The clerk must file the petition and enter it on the docket.
(c) Time to File. The time for filing a petition is governed by 28 U.S.C. § 2244(d).
(d) Inmate Filing. A paper filed by an inmate confined in an institution is timely if deposited in the institution's internal mailing system on or before the last day for filing. If an institution has a system designed for legal mail, the inmate must use that system to receive the benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. § 1746 or by a notarized statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.
Rule 4. Preliminary Review; Serving the Petition and Order
The clerk must promptly forward the petition to a judge under the court's assignment procedure, and the judge must promptly examine it. If it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not dismissed, the judge must order the respondent to file an answer, motion, or other response within a fixed time, or to take other action the judge may order. In every case, the clerk must serve a copy of the petition and any order on the respondent and on the attorney general or other appropriate officer of the state involved.
Rule 5. The Answer and the Reply
(a) When Required. The respondent is not required to answer the petition unless a judge so orders.
(b) Contents: Addressing the Allegations; Stating a Bar. The answer must address the allegations in the petition. In addition, it must state whether any claim in the petition is barred by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of limitations.
(c) Contents: Transcripts. The answer must also indicate what transcripts (of pretrial, trial, sentencing, or post-conviction proceedings) are available, when they can be furnished, and what proceedings have been recorded but not transcribed. The respondent must attach to the answer parts of the transcript that the respondent considers relevant. The judge may order that the respondent furnish other parts of existing transcripts or that parts of untranscribed recordings be transcribed and furnished. If a transcript cannot be obtained, the respondent may submit a narrative summary of the evidence.
(d) Contents: Briefs on Appeal and Opinions. The respondent must also file with the answer a copy of:
(1) any brief that the petitioner submitted in an appellate court contesting the conviction or sentence, or contesting an adverse judgment or order in a post-conviction proceeding;
(2) any brief that the prosecution submitted in an appellate court relating to the conviction or sentence; and
(3) the opinions and dispositive orders of the appellate court relating to the conviction or the sentence.
(e) Reply. The petitioner may submit a reply to the respondent's answer or other pleading within a time fixed by the judge.
Rule 6. Discovery
(a) Leave of Court Required. A judge may, for good cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of discovery. If necessary for effective discovery, the judge must appoint an attorney for a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.
(b) Requesting Discovery. A party requesting discovery must provide reasons for the request. The request must also include any proposed interrogatories and requests for admission, and must specify any requested documents.
(c) Deposition Expenses. If the respondent is granted leave to take a deposition, the judge may require the respondent to pay the travel expenses, subsistence expenses, and fees of the petitioner's attorney to attend the deposition.
Rule 7. Expanding the Record
(a) In General. If the petition is not dismissed, the judge may direct the parties to expand the record by submitting additional materials relating to the petition. The judge may require that these materials be authenticated.
(b) Types of Materials. The materials that may be required include letters predating the filing of the petition, documents, exhibits, and answers under oath to written interrogatories propounded by the judge. Affidavits may also be submitted and considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party against whom the additional materials are offered an opportunity to admit or deny their correctness.
Rule 8. Evidentiary Hearing
(a) Determining Whether to Hold a Hearing. If the petition is not dismissed, the judge must review the answer, any transcripts and records of state-court proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted.
(b) Reference to a Magistrate Judge. A judge may, under 28 U.S.C. § 636(b), refer the petition to a magistrate judge to conduct hearings and to file proposed findings of fact and recommendations for disposition. When they are filed, the clerk must promptly serve copies of the proposed findings and recommendations on all parties. Within 10 days after being served, a party may file objections as provided by local court rule. The judge must determine de novo any proposed finding or recommendation to which objection is made. The judge may accept, reject, or modify any proposed finding or recommendation.
(c) Appointing Counsel; Time of Hearing. If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A. The judge must conduct the hearing as soon as practicable after giving the attorneys adequate time to investigate and prepare. These rules do not limit the appointment of counsel under § 3006A at any stage of the proceeding.
Rule 9. Second or Successive Petitions
Before presenting a second or successive petition, the petitioner must obtain an order from the appropriate court of appeals authorizing the district court to consider the petition as required by 28 U.S.C. § 2244(b)(3) and (4).
Rule 10. Powers of a Magistrate Judge
A magistrate judge may perform the duties of a district judge under these rules, as authorized under 28 U.S.C. § 636.
Rule 11. Applicability of the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any statutory provisions or these rules, may be applied to a proceeding under these rules.