Hodson v. Colorado Mental Health Institute at Pueblo, et al

Filing 9

ORDER Directing Applicant To File Second and Final Amended Application, by Magistrate Judge Boyd N. Boland on 11/17/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02879-BNB
TRAVIS HODSON,
Applicant,
v.
WELD COUNTY SHERIFFS, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING APPLICANT TO FILE
SECOND AND FINAL AMENDED APPLICATION

Applicant, Travis Hodson, is a prisoner confined at the Colorado Mental Health
Institute at Pueblo (CMHIP). He submitted pro se on October 22, 2014, an Application
for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). He has paid the
$5.00 filing fee.
On October 24, 2014, the Court entered an order directing Mr. Hodson to file an
amended habeas corpus application that sued the proper Respondent and complied
with the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure and
Rules 2(c)(1) and 2(c)(2) of the Rules Governing Section 2254 Cases in the United
States District Courts (Section 2254 Rules). On November 12, 2014, Mr. Hodson filed
an amended application (ECF No. 7).
The Court must construe the amended application liberally because Mr. Hodson
is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon,

935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, should not act as a pro se
litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, Mr.
Hodson will be ordered to file a second and final amended Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254.
The amended application Mr. Hodson submitted to the Court on November 12,
2014, is deficient because it fails to comply with Fed. R. Civ. P. 8 and Rule 2 of the
Section 2254 Rules. The two asserted claims lack supporting factual allegations. In
claim one, Mr. Hodson briefly describes a claim he asserted in state court but fails to
clarify the claim he is asserting here; uses the acronym ISP that he fails to explain; and
generally makes vague assertions that his rights were violated without supporting those
allegations with facts. The only factual allegation is that the nature of the claim asserted
in the Colo. R. Crim. P. 35(c) motion was “no aggravating circumstances on the mitimus
[sic].” ECF No. 7 at 5. In claim two he references a case, No. 13CR1106, that is not
Weld County District Court Case No. 10CR771, the case he is challenging in this action,
and although he contends his second claim asserts a due process claim, in the body of
the claim he claims ineffective assistance of counsel. Both claims one and two
purportedly assert a Seventh Amendment due process violation, but the Fourteenth
Amendment, not the Seventh, concerns due process.
As Mr. Hodson was informed in the October 24 order for an amended
application, the Federal Rules of Civil Procedure apply to applications for habeas corpus
relief. See Fed. R. Civ. P. 81(a)(2); Browder v. Director, Dep’t of Corrections, 434 U.S.
257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987). Pursuant to
Fed. R. Civ. P. 8(a), a pleading “must contain (1) a short and plain statement of the
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grounds for the court’s jurisdiction, . . . (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand for the relief sought.”
Fed. R. Civ. P. 8(d)(1) provides that “[e]ach allegation must be simple, concise, and
direct.” Taken together, Rules 8(a) and (d)(1) underscore the emphasis placed on
clarity and brevity by the federal pleading rules. Prolix, vague, or unintelligible pleadings
violate the requirements of Rule 8.
Furthermore, pursuant to Rules 2(c)(1) and 2(c)(2) of the Section 2254 Rules,
Mr. Hodson must “specify all [available] grounds for relief” and he must “state the facts
supporting each ground.” 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). Naked allegations of constitutional violations are not
cognizable under § 2254. See Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir. 1992) (per
curiam). Therefore, the second and final amended application Mr. Hodson will be
directed to file must allege in a clear and concise manner both the § 2254 claims he
seeks to raise and the specific facts to support each asserted claim.
In addition, the only proper respondent to a habeas corpus action is the
applicant's custodian. See 28 U.S.C. § 2242; Rules 2(a) and 1(b), Section 2254 Rules;
Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). It is unclear to the Court the
reason he has named the “Weld County Sheriffs,” ECF No. 7 at 1, as his custodian
when he currently is confined at CMHIP.
Finally, Plaintiff’s handwriting is difficult to read because it is so small. Pursuant
to Rule 10.1 of the Local Rules of Practice for this Court, Plaintiff is required to file
legible documents, utilizing upper- and lower-case lettering. See D.C.COLO.LCivR
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10.1(g). The second and final amended application must comply with the legibility
requirements of Local Rule 10.1.
Accordingly, it is
ORDERED that Applicant, Travis Hodson, file a second and final amended
Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that complies with
this order within thirty (30) days from the date of this order. Any papers that
Applicant files in response to this order must include the civil action number on this
order. It is
FURTHER ORDERED that Applicant shall obtain the Court-approved form for
filing an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (with the
assistance of his case manager or the facility’s legal assistant), along with the
applicable instructions, at www.cod.uscourts.gov, and shall use all pages of that form in
filing the second and final amended application. It is
FURTHER ORDERED that, if Applicant fails to file a second and final amended
application that complies with this order within thirty (30) days from the date of this
order, the amended application will be denied and the action dismissed without further
notice. The dismissal shall be without prejudice.
DATED November 17, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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