Weinstein v. Donna Zavision et al

Filing 9

ORDER Directing Applicant to File Amended Pleading, by Magistrate Judge Boyd N. Boland on 09/10/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02119-BNB
DEVON S. WEINSTEIN,
Applicant,
v.
UNITED STATES DISTRICT COURT, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED PLEADING

Applicant, Devon S. Weinstein, has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging the validity of his conviction
in Denver District Court case number 05CR793. The court must construe the
application liberally because Mr. Weinstein 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, Mr. Weinstein will be ordered to
file an amended pleading if he wishes to pursue any claims in this action.
The court has reviewed the application and finds that it is deficient. First, the
United States District Court is not a proper Respondent in this action. The court notes
that Mr. Weinstein has filed a document (ECF No. 7) asking that the People of the State
of Colorado be substituted as a Respondent for the United States District Court, but the
People of the State of Colorado also is not a proper Respondent. The law is
well-established that the only proper respondent to a habeas corpus action is the

applicant’s custodian. See 28 U.S.C. § 2242; Rules 2(a), Rules Governing Section
2254 Cases in the United States District Courts; Harris v. Champion, 51 F.3d 901, 906
(10th Cir. 1995). It appears that Mr. Weinstein currently is incarcerated at the Denver
Reception and Diagnostic Center. Therefore, Mr. Weinstein should name as a
Respondent the warden of that facility. If Mr. Weinstein is transferred to a different
prison, the warden of the new facility will be the proper Respondent.
The court also finds that the application is deficient because Mr. Weinstein fails
to assert any claims for relief. Therefore, Mr. Weinstein will be directed to file an
amended pleading that identifies the specific federal constitutional claims he is asserting
and that provides specific factual allegations in support of each asserted claim as
required pursuant to Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254
Cases in the United States District Courts. Mr. Weinstein is advised that 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 Mr. Weinstein file an amended application that complies with this
order within thirty (30) days from the date of this order. It is
FURTHER ORDERED that Mr. Weinstein shall obtain the court-approved
2

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. Weinstein fails to file an amended application
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED September 10, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

3