Opinion
Civil Action No. 13-cv-00416-PAB Criminal Case No. 11-cr-00090-PAB
03-26-2013
UNITED STATES OF AMERICA, v. 1. WINFRED MITCHELL GREEN, Movant.
Judge Philip A. Brimmer
ORDER DIRECTING MOVANT TO FILE
SECOND AND FINAL AMENDED 28 U.S.C. § 2255 MOTION
Movant, Winfred Mitchell Green, is a prisoner in the custody of the Federal Bureau of Prisons who currently is incarcerated at the Federal Correctional Institution in Beaumont, Texas. On February 15, 2013, he filed pro se a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. [Docket No. 73].
On February 20, 2013, the Court entered an order [Docket No. 74] directing Mr. Green to file within thirty days an amended § 2255 motion on the Court-approved form that asserted "claims on the form he used, instead [of] attaching a thirty-eight-page memorandum that fails to make clear the exact claim or claims he is asserting." Id. at 2. On March 14, 2013, Mr. Green filed an amended § 2255 motion [Docket No. 76].
The Court must construe the amended § 2255 motion to vacate liberally because Mr. Green is representing himself. 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 act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr. Green will be directed to file a second and final amended motion to vacate.
The amended § 2255 motion Mr. Green filed on the Court-approved form fails to assert any claims on the form, and incorporates instead a seventeen-page memorandum, id. at 6-22, that fails to make clear the exact claim or claims he is asserting. In addition, Mr. Green fails to state a request for relief, sign the amended motion, or provide his prisoner identification number and complete mailing address. Id. at 23. In short, the amended § 2255 motion fails to cure deficiencies in the § 2255 motion Mr. Green originally filed, and adds some new deficiencies.
Mr. Green will be afforded a second and final opportunity to file a § 2255 motion that complies with the February 20 order. The Court reminds Mr. Green that, pursuant to Rules 2(b)(1) and 2(b)(2) of the Rules Governing Section 2255 Cases in the United States District Courts, Mr. Green must "specify all the [available] grounds for relief" and he must "state the facts supporting each ground." 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) (discussing identical rules applicable to 28 U.S.C. § 2254 applications). Naked allegations of constitutional violations are not cognizable. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per curiam).
Therefore, Mr. Green will be ordered to file a second and final amended motion to vacate. In the amended motion, he must use the Court-approved form for filing a § 2255 motion to allege - clearly, concisely, and separately - the specific claims for relief he is asserting, as well as the specific facts that support each asserted claim, if he wishes to pursue his claims in this action. The Court will not consider any claims raised in the original or amended § 2255 motions, separate memoranda, attachments, amendments, supplements, motions, or other documents not included in the second and final amended § 2255 motion. "Included in" the second and final amended § 2255 motion does not mean Mr. Green should insert a memorandum in the middle of the second amended § 2255 motion and expect the Court to determine the claims he is attempting to assert. "Included in" the second and final amended § 2255 motion means Mr. Green should use pages four through six on the Court-approved form for filing a § 2255 motion to assert his individual claims. Failure to file a second and final amended § 2255 motion that complies with this order within the time allowed will result in the dismissal of this action.
Accordingly, it is
ORDERED that Movant, Winfred Mitchell Green, file with the Court within thirty days from the date of this order a second and final amended motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 that complies with the directives of this order. Any papers Mr. Green files in response to this order must include the civil action number on this order. It is further
ORDERED that Mr. Green shall obtain the Court-approved Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov, and use that form in submitting the second and final amended motion to vacate. It is further
ORDERED that, if Green fails to file a second and final amended motion to vacate as directed within thirty days from the date of this order, the action will be dismissed without further notice.
BY THE COURT:
______________________
PHILIP A. BRIMMER
United States District Judge