Opinion
Civil Action No. 15-cv-01410-GPG
07-07-2015
GREGORY OWENS, Applicant, v. DAVID ZUPAN, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION
Applicant, Gregory Owens, is a prisoner in the custody of the Colorado Department of Corrections. Mr. Owens has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). The court must construe the application liberally because Mr. Owens 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.
Mr. Owens indicates in the application that he is challenging the validity of his conviction in Denver District Court case number 06CR7406. However, the application is deficient because he does not assert any claims for relief. Mr. Owens does list in the application a number of claims he allegedly raised on direct appeal and in state court postconviction proceedings, but it is not clear whether he intends to reassert some or all of those claims in this action. Furthermore, even if Mr. Owens does intend to assert in this action some or all of the claims he raised on direct appeal and in the state court postconviction proceedings, the application still is deficient because he fails to allege specific facts in support of those claims. Although the court must construe the application liberally, "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). Therefore, Mr. Owens will be ordered to file an amended application if he wishes to pursue any claims in this action.
Mr. Owens is advised that habeas corpus relief is warranted only if he "is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3). Pursuant to Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254 Cases in the United States District Courts, Mr. Owens must identify the specific federal constitutional right allegedly violated in each claim he is asserting and he must provide specific factual allegations in support of each asserted claim. These habeas corpus rules are more demanding than the rules applicable to ordinary civil actions, which require only notice pleading. See Mayle v. Felix, 545 U.S. 644, 655 (2005). "A prime purpose of Rule 2(c)'s demand that habeas petitioners plead with particularity is to assist the district court in determining whether the State should be ordered to 'show cause why the writ should not be granted.'" Id. at 656 (quoting 28 U.S.C. § 2243). 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, within thirty (30) days from the date of this order, Mr. Owens file an amended application that provides a clear statement of the federal constitutional claims he is asserting. It is
FURTHER ORDERED that Mr. Owens shall obtain the appropriate, court-approved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 form (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. Owens fails within the time allowed to file an amended application that complies with this order, the action will be dismissed without further notice.
DATED July 7, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge