Smith v. Miller

Filing 8

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Boyd N. Boland on 12/02/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02656-BNB
ALVIN SMITH,
Applicant,
v.
WARDEN MICHAEL MILLER,
Respondent.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Alvin Smith, is a prisoner in the custody of the Colorado Department of
Corrections at the Crowley County Correctional Facility in Olney Springs, Colorado. Mr.
Smith filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2241 asking to be released from custody.
The court must construe the application liberally because Mr. Smith 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. Smith will be ordered to file an amended application if he wishes to pursue
any habeas corpus claims challenging the execution of his sentence in this action.
Mr. Smith asserts four numbered claims for relief in the application, but he fails to
provide a clear statement of each claim he is asserting. First, Mr. Smith fails to identify
within each claim the specific federal constitutional right that allegedly has been

violated. Habeas corpus relief is warranted only if Mr. Smith “is in custody in violation of
the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Second, Mr. Smith fails to provide specific factual allegations in support of the
claims he is asserting that demonstrate his constitutional rights have been violated and
that he is entitled to habeas corpus relief. Although the court must construe the
application liberally, “the court cannot take on the responsibility of serving as the
litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby
Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
Finally, Mr. Smith may not challenge the validity of his conviction or sentence in
this action because he has filed a separate habeas corpus action pursuant to 28 U.S.C.
§ 2254 challenging the validity of his conviction and sentence. See Smith v. Miller, No.
13-cv-02081-BNB (D. Colo. filed Aug. 5, 2013). In the instant habeas corpus action
pursuant to 28 U.S.C. § 2241, Mr. Smith may assert only claims that challenge the
execution of his sentence. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).
For these reasons, Mr. Smith must file an amended application that clarifies the
claims he is asserting if he wishes to pursue those claims 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 this habeas corpus action pursuant to § 2241, Mr.
Smith must identify the specific federal constitutional claims he is asserting and he must
provide specific factual allegations in support of those claims. 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
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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, within thirty (30) days from the date of this order, Mr. Smith
file an amended application that clarifies the claims he is asserting in this action. It is
FURTHER ORDERED that Mr. Smith 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. Smith fails within the time allowed to file an
amended application as directed, the action will be dismissed without further notice.
DATED December 2, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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