DePineda v. Medina

Filing 7

ORDER Directing Applicant to File Amended Pleading, by Magistrate Judge Boyd N. Boland on 2/07/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00152-BNB
MANUEL DEPINEDA,
Applicant,
v.
TOM CLEMENTS,
JANICE DAVIDSON,
ANTHONY YOUNG, Colo. P.B., and
JOHN SUTHERS, Colo. A.G.,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED PLEADING

Applicant, Manuel DePineda, is a prisoner in the custody of the Colorado
Department of Corrections at the Fremont Correctional Facility in Cañon City, Colorado.
Mr. DePineda has filed pro se an Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241. The court must construe the application liberally because Mr.
DePineda 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. DePineda will be ordered to file an amended application if
he wishes to pursue any claims challenging the execution of his sentence in this action.
Mr. DePineda’s claims in the application are not clear. He appears to be
challenging the validity of his conviction and sentence and the execution of his
sentence. The court lacks jurisdiction to consider the validity of Mr. DePineda’s
conviction and sentence because Mr. DePineda has not obtained authorization from the

United States Court of Appeals for the Tenth Circuit to file a second or successive
application. See DePineda v. Clements, No. 12-cv-03089-LTB (D. Colo. Nov. 30, 2012)
(dismissing for lack of jurisdiction Mr. DePineda’s most recent successive habeas
corpus application challenging the validity of his conviction and sentence).
With respect to the execution of his sentence, Mr. DePineda refers in the
application to the parole board and the computation of his sentence that may not be
barred by the limitations on filing second or successive applications. However, in order
to address those claims, Mr. DePineda must provide a clear statement of the claims he
is asserting. Therefore, Mr. DePineda will be ordered to file an amended application.
Mr. DePineda must name an appropriate Respondent in the amended pleading
he will be directed to file. 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). Because Mr. DePineda currently is
incarcerated at the Fremont Correctional Facility, he should name the warden of that
facility as Respondent.
More importantly, Mr. DePineda must clarify the federal constitutional claims
challenging the execution of his sentence that he seeks to assert in this action.
Pursuant to Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254 Cases in the
United States District Courts, which apply to Mr. DePineda’s claims challenging the
execution of his sentence pursuant to § 2241, Mr. DePineda must identify the specific
federal constitutional claims he is asserting, and he must provide specific factual
allegations in support of each asserted claim. The habeas corpus rules are more
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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. DePineda 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. DePineda shall obtain the court-approved
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 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. DePineda fails to file an amended application
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED February 7, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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