Opinion
Civil Action No. 13-cv-02247-WJM-BNB
11-19-2014
GENERO ZUNIGA, Applicant, v. JAMES FALK, Warden of Sterling Correctional Facility, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
Honorable William J. Martínez
ORDER DENYING MOTIONS
This matter is before the Court on the motions for an evidentiary hearing (ECF No. 32) and for production of the state court record (ECF No. 33), that Applicant, Genero Zuniga, filed on October 7, 2014.
Mr. Zuniga is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado. He filed pro se an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) challenging the validity of his conviction in Arapahoe County, Colorado, District Court Case No. 04CR1690.
The Court must construe Mr. Zuniga's motions liberally because he 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, the motions for an evidentiary hearing and production of the state court record will be denied.
Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts provides that "the judge must review the answer, any transcripts and records of state-court proceedings . . . to determine whether an evidentiary hearing is warranted."
The state court record (ECF No. 22) was filed on June 30, 2014. Respondents filed an answer (ECF No. 25) addressing the habeas corpus application on July 11, 2014, and Applicant filed a traverse (ECF No. 31) on August 28, 2014. The Court will review these filings in due course, and determine whether an evidentiary hearing is warranted. The motion for an evidentiary hearing will be denied as premature.
The motion for production of the state court record will be denied as moot. As previously stated, the state court record was filed on June 30, 2014.
Accordingly, it is
ORDERED that the motion for an evidentiary hearing (ECF No. 32) is DENIED as PREMATURE and the motion for production of the state court record (ECF No. 33) is DENIED as MOOT.
Dated this 19th day of November, 2014.
BY THE COURT:
/s/_________
William J. Martínez
United States District Judge