Opinion
Civil Action No. 19-cv-00055-GPG
05-14-2019
MICHAEL ALLEN ESHBACH, Petitioner, v. JEFFERSON COUNTY COMBINED COURT BUILDING, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter comes before the Court on the second amended pleading (ECF No. 11) filed pro se by Petitioner, Michael Allen Eshbach, on March 13, 2019. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 15.)
"(ECF # 11)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). --------
The Court must construe the second amended pleading and other papers filed by Mr. Eshbach liberally because he 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.
The Court has reviewed the filings to date. The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the second amended pleading be denied and the action be dismissed.
I. DISCUSSION
Mr. Eshbach initiated this action by filing a Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (ECF No. 1). On February 19, 2019, after being directed to use the proper form, Mr. Eshbach filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8). On February 21, 2019, the Court ordered Mr. Eshbach to file a second amended pleading that names a proper Respondent and that provides a clear statement of the federal constitutional claims he is asserting. As noted above, the second amended pleading was filed on March 13, 2019. Mr. Eshbach is challenging the validity of a state court misdemeanor conviction for indecent exposure. Mr. Eshbach alleges he was forced to plead guilty to that charge and was sentenced in November 2017 to a term of eighteen months.
On April 2, 2019, the Court ordered Mr. Eshbach to file a third amended pleading within thirty days. The Court specifically noted that the second amended pleading is not on the proper pleading form, Mr. Eshbach failed to name a proper Respondent, and he failed to provide a clear statement of the claims he is asserting. Mr. Eshbach has not filed a third amended pleading within the time allowed. Therefore, the second amended pleading is the operative pleading before the Court.
Mr. Eshbach fails to provide a clear statement of any federal constitutional claims in the second amended pleading that demonstrate he is entitled to relief in this habeas corpus action. As noted in the order directing Mr. Eshbach to file a third amended pleading, the pleading rules applicable to a habeas corpus action are more demanding than the rules applicable to ordinary civil actions, see Mayle v. Felix, 545 U.S. 644, 655 (2005), and naked allegations of constitutional violations are not cognizable in a habeas corpus action, see Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per curiam). Furthermore, the general rule that pro se pleadings must be construed liberally has limits and "the court cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record." Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Mr. Eshbach lists four claims for relief in the second amended pleading. However, only one of the claims identifies the federal constitutional right allegedly violated. More importantly, Mr. Eshbach fails in each of his claims to allege specific facts that demonstrate his federal constitutional rights have been violated. The entirety of claim one, which is identified as a Sixth Amendment claim, is the following:
During the time between November 2016 and December 2016 when my case was scheduled for trial[,] I was standing before Judge Ryan James Stuart[.] I attempted to tell him that I wanted to testify against all witnesses and victims
involved. I was denied by the court when Judge Stuart shrugged his shoulders [g]esturing he did not care.(ECF No. 11 at 6.) In claim two, which is captioned "Forced to register as a sex offender," Mr. Eshbach alleges the following:
December 2016 my public defender approached me shoving papers at me saying here sign this. After five minutes of not wanting to sign the forms and arguing with my public defender she said shut up and sign this so we can get this over with. After being forced to sign sex offender forms I stood in front of Judge Stuart waiting for him to ask me if anyone forced me to sign the sex offender form but he never did. All he asked me was is this your signature and just moved on.(ECF No. 11 at 8.) In claim three, which is captioned "Illegal sentence," Mr. Eshbach alleges as follows:
November 2017 Judge Ryan James Stuart sentenced the Petitioner to sixteen months jail and add[ed] on an extra two months. Even though Judge Stuart was comp[lete]ly aware of the unfair court proceedings.(ECF No. 11 at 9.) Finally, in claim four, which is captioned "Illegal Incarceration," Mr. Eshbach alleges the following:
December 2016 after stating to Judge Ryan James Stuart that I (the Petitioner) wanted to face all those involved in case #16m1701[,] he still chose[] to incarcerate me without a trial or a fair court hearing[].(ECF No. 11 at 11.)
Mr. Eshbach's vague and conclusory allegations that state court proceedings were not fair do not demonstrate his federal constitutional rights were violated or that he is entitled to habeas corpus relief. Furthermore, despite the specific instructions in the order directing him to file a third amended pleading, Mr. Eshbach has failed to file a third amended pleading that clarifies the claims he is asserting.
II. RECOMMENDATION
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the second amended pleading (ECF No. 11) be denied and the action be dismissed without prejudice because Petitioner fails to provide a clear statement of any claims that demonstrate he is entitled to habeas corpus relief.
DATED at Grand Junction, Colorado, this 14th day of May, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge