Opinion
Civil Action No. 11-CV-01402-BNB
08-01-2011
QUINN MCKENZIE JEBE, Applicant, v. COLORADO DEPARTMENT OF CORRECTIONS, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION
Applicant, Quinn McKenzie Jebe, is a prisoner in the custody of the Colorado Department of Corrections who is currently incarcerated at the Cheyenne Mountain Re-Entry Center in Colorado Springs, Colorado. Mr. Jebe has filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and/or 28 U.S.C. § 2255, in which he challenges the execution of his state sentence.
The Court must construe the habeas corpus application liberally because Mr. Jebe 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, Mr. Jebe will be ordered to file an amended application.
The Court has reviewed the application and finds that it is deficient because Mr. Jebe is challenging the execution of his state sentence rather than the validity of his state court conviction and sentence. As a result, the claims he is raising properly are asserted pursuant to 28 U.S.C. § 2241 rather than § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). Although Mr. Jebe has been convicted on counterfeiting charges in this Court, see United States v. Jebe, No. 10-cr-00513-PAB-01 (D. Colo. Mar. 29, 2011), he is not challenging his federal conviction in the instant action and, therefore, this action is not a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255.
Because Mr. Jebe has not filed an application for a writ of habeas corpus pursuant to § 2241, he will be ordered to file an amended application on the proper, Court-approved form if he wishes to pursue his claims in this action. Mr. Jebe is advised that the only proper respondent to a habeas corpus action is the applicant's custodian. See 28 U.S.C. § 2242; Rules 2(a) and 1(b), Rules Governing Section 2254 Cases in the United States District Courts; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Mr. Jebe also is advised that he must identify clearly the specific constitutional claims he intends to pursue and he must allege specific facts in support of those claims. 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).
Accordingly, it is
ORDERED that Applicant, Quinn McKenzie Jebe, file within thirty (30) days from the date of this order an amended habeas corpus application on the proper 28 U.S.C. § 2241 form that complies with the directives of this order. It is
FURTHER ORDERED that Mr. Jebe shall obtain the Court-approved form for filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Jebe fails to comply with this order within the time allowed, the application will be denied and the action will be dismissed without further notice.
DATED August 1, 2011, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01402-BNB Quinn McKenzie Jebe
Prisoner No. 132709
Cheyenne Mountain Re-Entry Center
2925 E Las Vegas St
Colorado Springs, CO 80906
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on August 1, 2011.
GREGORY C. LANGHAM, CLERK
By:_____________
Deputy Clerk