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Vondette v. Garfield Cnty.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Aug 2, 2011
Civil Action No. 11-cv-01870-BNB (D. Colo. Aug. 2, 2011)

Opinion

Civil Action No. 11-cv-01870-BNB

08-02-2011

LOY VONDETTE Applicant, v. GARFIELD COUNTY, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.


ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Loy VonDette, is a prisoner in the custody of the Colorado Department of Corrections and is incarcerated at the Fremont Correctional Facility in Canon City, Colorado. Mr. VonDette, 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. VonDette is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 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. VonDette 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. VonDette 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). Mr. VonDette must allege on the Court-approved form both the claims he seeks to raise and the specific facts to support each asserted claim. The Court has reviewed the Application submitted to the Court on July 19, 2011, and finds that it is deficient. Mr. VonDette fails to assert on Pages Five and Six a statement of the claims he intends to raise in this Court.

Mr. VonDette also is instructed that pursuant to 28 U.S.C. § 2243 an application for writ of habeas corpus is directed to the person who has custody of the detained person. Therefore, Garfield County is not a proper respondent. Mr. VonDette is directed to name only the custodian of the facility where he is incarcerated as respondent in the 28 U.S.C. § 2254 Application. Accordingly, it is

ORDERED that Mr. VonDette file within thirty days from the date of this Order an Amended Application that complies with the Order. It is

FURTHER ORDERED that Mr. VonDette shall obtain the court-approved 28 U.S.C. § 2254 Application 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. VonDette fails within the time allowed to file an Amended Application, as directed above, the action will be dismissed without further notice.

DATED August 2, 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-01870-BNB Loy VonDette
Prisoner No. 82822
Fremont Correctional Facility
PO Box 999
Canon City, CO 81215

I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on August 2, 2011.

GREGORY C. LANGHAM, CLERK

By: _____________

Deputy Clerk


Summaries of

Vondette v. Garfield Cnty.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Aug 2, 2011
Civil Action No. 11-cv-01870-BNB (D. Colo. Aug. 2, 2011)
Case details for

Vondette v. Garfield Cnty.

Case Details

Full title:LOY VONDETTE Applicant, v. GARFIELD COUNTY, and THE ATTORNEY GENERAL OF…

Court:UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Date published: Aug 2, 2011

Citations

Civil Action No. 11-cv-01870-BNB (D. Colo. Aug. 2, 2011)