Tillotson et al v. McCoy

Filing 4

ORDER Of Dismissal. The habeas corpus application (ECF No. 1 ) is denied and the action is dismissed without prejudice. No certificate of appealability will issue. Leave to proceed in forma pauperis on appeal is denied without prejudice. The Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3 ) is denied as moot. By Judge Lewis T. Babcock on 7/1/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01778-BNB
CHRIS TILLOTSON,
Applicant,
v.
OFFICER T.J. McCOY, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Chris Tillotson, is confined in the Colorado Mental Health Institute at
Pueblo, Colorado. Mr. Tillotson has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and a Prisoner’s Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF
No. 3). Mr. Tillotson also has paid the $5.00 filing fee for a habeas corpus action.
Therefore, the Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3) will be denied as moot.
The Court must construe the application liberally because Mr. Tillotson 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, the Court will dismiss the action without prejudice.
Mr. Tillotson is challenging the validity of his custody pursuant to an order of the

Arapahoe County District Court in case number 07CR2358 finding him not guilty by
reason of insanity. He asserts two related claims for relief contending that he was
subjected to excessive force by a police officer and that he is imprisoned wrongfully
because he is not guilty of second degree assault on the officer. As relief he asks that
the charges be dropped or reduced.
Mr. Tillotson previously filed a habeas corpus action in which he also challenges
the validity of his custody pursuant to an order of the Arapahoe County District Court in
case number 07CR2358 finding him not guilty by reason of insanity. See Tillotson v.
May, No. 14-cv-00751-BNB (D. Colo. filed Mar. 13, 2014). Mr. Tillotson’s claims in this
action are the same claims he asserts in 14-cv-00751-BNB and he seeks the same
relief in both actions. Case number 14-cv-00751-BNB remains pending.
Mr. Tillotson may not challenge his custody in two separate habeas corpus
actions at the same time. Therefore, the instant action will be dismissed without
prejudice to consideration of Mr. Tillotson’s claims in 14-cv-00751-BNB.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Applicant files a notice of appeal he also must pay the full $505
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24. Accordingly, it is
ORDERED that the habeas corpus application (ECF No. 1) is denied and the
action is dismissed without prejudice. It is
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FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER 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. 3) is
denied as moot.
DATED at Denver, Colorado, this 1st

day of

July

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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