Olivas-Sepulbeda v. Attorney General of the State of Colorado, The

Filing 11

ORDER Directing Applicant to File Second Amended Application, by Magistrate Judge Boyd N. Boland on 6/26/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01100-BNB
ABRAHAM OLIVAS-SEPULBEDA,
Applicant,
v.
ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondent.

ORDER DIRECTING APPLICANT TO FILE SECOND AMENDED APPLICATION

Applicant, Abraham Olivas-Sepulbeda, is a prisoner in the custody of the
Colorado Department of Corrections. Mr. Olivas-Sepulbeda initiated this action by filing
pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF
No. 1). On June 20, 2014, Mr. Olivas-Sepulbeda filed an amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 8).
The court must construe the amended application liberally because Mr. OlivasSepulbeda 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. Mr.
Olivas-Sepulbeda will be ordered to file a second amended application if he wishes to
pursue his claims in this action.
In the original application Mr. Olivas-Sepulbeda indicated he was challenging the
validity of a Colorado state court conviction but he did not assert any specific claims for

relief. Mr. Olivas-Sepulbeda indicates in the amended application that he is challenging
the validity of his federal conviction in the United States District Court for the Eastern
District of Missouri. (See ECF No. 8 at 1-2.) Mr. Olivas-Sepulbeda also does not assert
any specific claims in the amended application and he does not specify the relief he is
seeking in this action.
Mr. Olivas-Sepulveda must file a second amended application that clarifies the
conviction he is challenging, the specific claims he is asserting, and the specific relief he
is seeking. Mr. Olivas-Sepulbeda may not challenge the validity of both his state and
federal convictions in one action. If Mr. Olivas-Sepulbeda asserts claims challenging
the validity of his state court criminal conviction or sentence, the claims must be
asserted in a habeas corpus application pursuant to 28 U.S.C. § 2254. See Montez v.
McKinna, 208 F.3d 862, 865 (10th Cir. 2000). If Mr. Olivas-Sepulbeda is asserting
claims challenging the validity of his federal conviction or sentence, he may not assert
those claims pursuant to § 2254. Mr. Olivas-Sepulbeda may be able to assert claims
challenging the validity of his federal conviction or sentence in a habeas corpus action
pursuant to 28 U.S.C. § 2241. However, he may not assert claims challenging the
validity of his federal conviction or sentence in a habeas corpus action pursuant to §
2241 in this court unless the remedy available to him in the sentencing court pursuant to
28 U.S.C. § 2255 is inadequate or ineffective. See Johnson v. Taylor, 347 F.2d 365,
366 (10th Cir. 1965) (“[t]he exclusive remedy for testing the validity of a [federal]
judgment and sentence, unless it is inadequate or ineffective, is that provided for in 28
U.S.C. § 2255”); see also 28 U.S.C. § 2255(e).
It also is possible that Mr. Olivas-Sepulbeda intends to assert claims challenging
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the execution of his state or federal sentences because he has tendered to the court
another confusing pleading indicating he seeks to have his state and federal sentences
run concurrently. (See ECF No. 6.) If Mr. Olivas-Sepulbeda asserts claims challenging
the execution of his state or federal sentences, the claims properly are asserted in a
habeas corpus action pursuant to § 2241. See Montez, 208 F.3d at 865.
Regardless of the statutory authority for his claims in this action, Mr. OlivasSepulbeda must provide specific factual allegations that support each asserted claim.
Habeas corpus relief is warranted only if Mr. Olivas-Sepulbeda “is in custody in violation
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
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 asserting claims pursuant to §
2241, Mr. Olivas-Sepulbeda must provide specific factual allegations in support of the
federal constitutional claims he is asserting. 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).
Although the court must construe pro se pleadings 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). Furthermore, naked allegations of constitutional violations are not
cognizable in a habeas corpus action. See Ruark v. Gunter, 958 F.2d 318, 319 (10th
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Cir. 1992) (per curiam). If Mr. Olivas-Sepulbeda fails to file a second amended
application on the proper form or if he fails to clarify the specific claims he is asserting
and the specific factual allegations that support each asserted claim, the action will be
dismissed without prejudice and without further notice. Accordingly, it is
ORDERED that, within thirty (30) days from the date of this order, Mr. OlivasSepulbeda file a second amended application that complies with this order. It is
FURTHER ORDERED that Mr. Olivas-Sepulbeda shall obtain the proper, 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. Olivas-Sepulbeda fails within the time allowed
to file a second amended application that complies with this order, the action will be
dismissed without further notice.
DATED June 26, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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