Simmons v. Chapdelaine et al

Filing 4

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Boyd N. Boland on 2/2/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00130-BNB
LEO SIMMONS,
Applicant,
v.
JOHN CHAPDELAINE, Acting Warden,
KEVIN MILYARD, Warden,
THE PEOPLE OF THE STATE OF COLORADO, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Leo Simmons, is a prisoner in the custody of the Colorado Department
of Corrections and is incarcerated at the correctional facility in Sterling, Colorado. Mr.
Simmons, 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. Simmons
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.
Simmons 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. Simmons 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. Simmons must allege 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 January 18, 2012, and
finds that it is deficient. Mr. Simmons asserts three claims. He fails, however, to state
specific facts in support of each claim.
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, People of the State
of Colorado is not a properly named respondent. Furthermore, only one person needs
to be named as his custodian. Accordingly, it is
ORDERED that Mr. Simmons file within thirty days from the date of this Order an
Amended Application that complies with the Order. It is
FURTHER ORDERED that Mr. Simmons 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. Simmons fails within the time allowed to file an
Amended Application, as directed above, the action will be dismissed without further
notice.
DATED February 2, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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