Lugo-Gonzalez v. People of the United States

Filing 16

ORDER Directing Applicant to File Amended Application; denying as moot 7 and 10 28 U.S.C. & 1915 Motion and Affidavit; granting 15 Motion for Leave to Proceed in Forma Pauperis, by Magistrate Judge Boyd N. Boland on 1/29/2014.(skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-03478-BNB
ANDRES URIEL LUGO-GONZALEZ,
Applicant,
v.
PEOPLE OF THE UNITED STATES,
Respondent.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Andres Uriel Lugo-Gonzalez, is an inmate at the Denver Van CiseSimonet Detention Center in Denver, Colorado. Mr. Lugo-Gonzalez has filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 14).
Applicant also has filed a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant
to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 15). That motion will be
granted.
The court must construe the application liberally because Mr. Lugo-Gonzalez 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. Lugo-Gonzalez will be ordered to file an amended application if he wishes to
pursue any federal constitutional claims in this action.
The court has reviewed the application and finds that it is deficient. First, 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). Applicant alleges that he currently is incarcerated at the Denver Van
Cise-Simonet Detention Center. Therefore, he should name as a Respondent his
custodian at that facility.
The application also is deficient because Mr. Lugo-Gonzalez fails to provide a
clear statement of the claims he is asserting. Habeas corpus relief is warranted only if
Applicant “is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3). Although, Mr. Lugo-Gonzalez appears to challenge his
detention and seeks a bail hearing, it is not clear why he believes he is entitled to
habeas corpus relief in federal court because he fails to identify the specific federal
constitutional right that allegedly has been violated.
Second, Applicant 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).
For these reasons, Mr. Lugo-Gonzalez must file an amended application that
names a proper Respondent and 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
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habeas corpus action pursuant to § 2241, Applicant 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 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). Therefore, Mr. Lugo-Gonzalez must allege in
the amended application both the § 2241 claims he seeks to raise and the specific facts
to support each asserted claim. Accordingly, it is
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 15) is GRANTED. It
is
FURTHER ORDERED that the filings entitled “28 U.S.C. & 1915 Motion and
Affidavit” (ECF Nos. 7 and 10) are DENIED as moot. It is
FURTHER ORDERED that, within thirty (30) days from the date of this order,
Mr. Lugo-Gonzalez file an amended application that clarifies the claims he is asserting
in this action. It is
FURTHER ORDERED that Mr. Lugo-Gonzalez 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
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applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Lugo-Gonzalez fails within the time allowed to
file an amended application as directed, the action will be dismissed without further
notice.
DATED January 29, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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