Houston v. Clements et al

Filing 6

ORDER Directing Applicant to File Amended Pleading, by Magistrate Judge Boyd N. Boland on 3/20/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00580-BNB
KYLE LEE HOUSTON, Persona-Sui-Juris, a/k/a Delihue III, Hebrew Masonic Jew of the
Israel Nation,
Applicant,
v.
TOM CLEMENTS (C.D.O.C.), and
DIRECTOR WILLSON, City, County D.C.J.,
Respondent.

ORDER DIRECTING APPLICANT TO FILE AMENDED PLEADING

Applicant, Kyle Lee Houston, is an inmate at the Denver County Jail in Denver,
Colorado. Mr. Houston 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. Houston 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. Houston will be ordered to file an amended
application if he wishes to pursue any claims in this action.
Mr. Houston’s claims in the application are not clear. Although he is confined at
the Denver County Jail, most of the application consists of references to sentences he
has served, or may still be serving, in the custody of the Colorado Department of
Corrections. It is not clear why Mr. Houston currently is confined at the Denver County
Jail, what conviction(s) or sentence(s) he may be challenging in this action, or why he

believes he is entitled to habeas corpus relief in federal court. It also is not clear
whether Mr. Houston’s claims in this habeas corpus action properly are asserted
pursuant to 28 U.S.C. § 2254 or 28 U.S.C. § 2241. If Mr. Houston seeks to challenge
the validity of a state court conviction or sentence, his claims properly are asserted
pursuant to § 2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). If Mr.
Houston is not challenging the validity of a state court conviction or sentence and,
instead, seeks to challenge the execution of a state sentence by jail or prison officials,
his claims properly are asserted pursuant to § 2241. See id.
In order for the court and Respondents to address his claims in this action, Mr.
Houston must provide a clear statement of those claims. Therefore, Mr. Houston will be
ordered to file an amended application. Mr. Houston should determine the appropriate
statutory authority for his claims and file one pleading on the proper form asserting
those claims. 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 even if he is challenging
the execution of his sentence pursuant to § 2241, Mr. Houston 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
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.
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Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per curiam). Accordingly, it is
ORDERED that Mr. Houston 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. Houston shall obtain the appropriate courtapproved habeas corpus 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. Houston fails to file an amended application
that complies with this order within the time allowed, the action will be dismissed without
further notice.
DATED March 20, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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