Opinion
Civil Action No. 11-cv-02460-BNB
09-30-2011
CARLOS BUSTAMANTE HURTADO, Applicant, v. KEVIN MILYARD, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION
Applicant, Carlos Bustamante Hurtado, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. Mr. Bustamante Hurtado, acting pro se , filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. The Court must construe the application liberally because Mr. Bustamante Hurtado is a pro se litigant. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972); Hall v. Bell mo n , 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as a pro se litigant's advocate. See Hall , 935 F.2d at 1110. For the reasons stated below, Mr. Bustamante Hurtado will be ordered to file an amended application.
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts requires that Mr. Bustamante Hurtado go beyond notice pleading. See Blackledge v. Allison , 431 U.S. 63, 75 n.7 (1977). Naked allegations of constitutional violations devoid of factual support are not cognizable in a federal habeas action. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per curiam). The Court has reviewed the application Mr. Bustamante Hurtado submitted on September 19, 2011, and finds that it is deficient. Mr. Bustamante Hurtado fails to assert on pages five through six a statement of the claims he intends to raise in this Court. Mr. Bustamante Hurtado must allege on the Court-approved form both the claims he seeks to raise and the specific facts to support each asserted claim.
Therefore, Mr. Bustamante Hurtado will be ordered to file an amended application in which he identifies, on the Court-approved form, all the specific claims for relief that he is asserting and in which he provides specific facts in support of each asserted claim.
Accordingly, it is
ORDERED that within thirty days from the date of this order, Applicant, Carlos Bustamante Hurtado, file an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that complies with this order. It is
FURTHER ORDERED that Mr. Bustamante Hurtado shall obtain the Court-approved § 2254 application form (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, www.cod.uscourts.gov. It is
FURTHER ORDERED that if Mr. Bustamante Hurtado fails within the time allowed to file an amended application as directed, the application will be denied and the action dismissed without further notice.
DATED September 30, 2011, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-02460-BNB Carlos Bustamante Hurtado
Prisoner No. 134573
Sterling Correctional Facility
PO Box 6000
Sterling, CO 80751
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on September 30, 2011.
GREGORY C. LANGHAM, CLERK
BY ____
Deputy Clerk