Orduno v. Colorado Dept. of Corrections/Adult Parole Division

Filing 6

ORDER Directing Applicant To File Amended Application, by Magistrate Judge Boyd N. Boland on 09/16/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02498-BNB
ANTHONY DRAKE ORDUNO,
Applicant,
v.
DENVER DETENTION CENTER,
Respondent.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Anthony Drake Orduno, is an inmate at the Denver Detention Center
in Denver, Colorado. Mr. Orduno has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) complaining that his parole officer
refuses to lift a parole hold.
The court must construe the application liberally because Mr. Orduno 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. Orduno will be ordered
to file an amended application if he wishes to pursue any federal constitutional claims in
this action.
The application 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). Mr. Orduno alleges that
he currently is incarcerated at the Denver Detention Center. Therefore, he should name
as Respondent his custodian at that facility.
The application also is deficient because Mr. Orduno fails to provide specific
factual allegations in support of his claims that demonstrate that his federal
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).
Habeas corpus relief is warranted only if Mr. Orduno “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 to this habeas corpus action pursuant to §
2241, Mr. Orduno 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). 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
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ORDERED that, within thirty (30) days from the date of this order, Mr.
Orduno file an amended application that names a proper Respondent and that clarifies
the claims he is asserting in this action. It is
FURTHER ORDERED that Mr. Orduno 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. Orduno fails within the time allowed to file an
amended application as directed, the action will be dismissed without further notice.
DATED September 16, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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