Hernandez v. Clements et al

Filing 3

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Boyd N. Boland on 03/12/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-00587-BNB
ROY HERNANDEZ,
Applicant,
v.
TOM CLEMENTS, Executive Director CO. D.O.C., and
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Roy Hernandez, currently is confined at the El Paso County Criminal
Justice Center in Colorado Springs, Colorado. He has filed pro se an Application for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and paid the $5.00
filing fee.
The Court must construe the application liberally because Mr. Hernandez 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. Hernandez will be directed to file an amended application.
Mr. Hernandez alleges that he was convicted by a jury in the District Court of
Weld County, Colorado, in Case No. 93CR760 on charges of burglary, theft, and
attempt to commit sexual assault. He was sentenced to twelve years of incarceration,
and contends he was sentenced illegally to mandatory parole. Judgment was entered

on November 12, 1998. He fails to provide sufficient details about his direct appeal
from the judgment of conviction or the postconviction motion he filed. He fails to assert
any claims.
The Court will not speculate as to what, if any, federal constitutional claims Mr.
Hernandez may be trying to assert. The Court must construe Mr. Hernandez’s filings
liberally, but is not required to fashion his arguments for him where his allegations are
merely conclusory or suggestive in nature and are without supporting factual averments.
See United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994); see also United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting
for truffles buried in briefs.'').
Pleading in § 2254 federal habeas corpus cases is governed by Rule 2 of the
Rules Governing Section 2254 Cases in the United States District Courts (Section 2254
Rules), which requires more specific pleading than the rules governing ordinary civil
cases. See Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (Notice pleading is not
sufficient; the petition is expected to state facts that point to “a real possibility of
constitutional error.”); Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970)
(same); Mayle v. Felix, 545 U.S. 644, 655 (2005) (Section 2254 Rule 2(c), which is
more demanding than Rule 8(a) of the Federal Rules of Civil Procedure, requires the
petition to “specify all the grounds for relief available to the petitioner” and “state the
facts supporting each ground.”).
However, the Federal Rules of Civil Procedure do apply to applications for
habeas corpus relief. See Fed. R. Civ. P. 81(a)(4); Browder v. Director, Dep’t of
Corrections, 434 U.S. 257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th
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Cir. 1987). Pursuant to Fed. R. Civ. P. 8(a), a pleading "shall contain (1) a short and
plain statement of the basis for the court’s jurisdiction, . . . (2) a short and plain
statement of the claim showing that the pleader is entitled to relief, and (3) a demand for
the relief sought." Fed. R. Civ. P. 8(d)(1) provides that "[e]ach allegation must be
simple, concise, and direct." Taken together, Rules 8(a) and (d)(1) underscore the
emphasis placed on clarity and brevity by the federal pleading rules. Prolix, vague, or
unintelligible pleadings violate the requirements of Rule 8.
Because Mr. Hernandez fails to assert any claims, he will be directed to file an
amended application asserting exhausted claims that comply with the pleading
requirements of Rule 2(c) of the Section 2254 Rules and Rule 8 of the Federal Rules of
Civil Procedure. Failure to do so within the time allowed will result in the dismissal of
the instant action. The Court will not consider any claims raised in separate
attachments, amendments, supplements, motions, or other documents not included in
the amended application.
The only proper respondent to a habeas corpus action is the applicant’s
custodian. See 28 U.S.C. § 2242; Rules 2(a) and 1(b), Section 2254 Rules; Harris v.
Champion, 51 F.3d 901, 906 (10th Cir. 1995). Therefore, his warden, and not Tom
Clements, is the proper party to this action. Mr. Hernandez must provide the complete
address for the proper Respondent.
Accordingly, it is
ORDERED that Applicant, Roy Hernandez, file within thirty days from the date
of this order, an Amended Application for a Writ of Habeas Corpus Pursuant to 28

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U.S.C. § 2254 that complies with the pleading requirements of Rule 2 of the Rules
Governing Section 2254 Cases in the United States District Courts and Rule 8 of the
Federal Rules of Civil Procedure. It is
FURTHER ORDERED that Mr. Hernandez shall obtain the Court-approved
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 form, along with
the applicable instructions, at www.cod.uscourts.gov, to use in submitting the amended
application. It is
FURTHER ORDERED that if Mr. Hernandez fails within the time allowed to file
an amended application as directed, the application will be denied and the action
dismissed without prejudice and without further notice.
DATED March 12, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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