Jones v. Miller et al

Filing 3

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Boyd N. Boland on 10/28/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02916-BNB
RICHARD S. JONES,
Applicant,
v.
WARDEN MILLER, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Richard S. Jones, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Jones has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1). The court must construe
the application liberally because Mr. Jones 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. Jones will be ordered to file an amended application if he
wishes to pursue any claims in this action.
Mr. Jones alleges that he was convicted of escape in Arapahoe County District
Court case number 08CR463 for cutting off an ankle monitor and absconding from
parole and that he is serving a sentence of forty-eight years in prison. It appears that
each of his three claims for relief in the application challenge the escape conviction
because the underlying term of parole from which he absconded allegedly was illegal.

However, the application is deficient because Mr. Jones fails to provide a clear
statement of the federal constitutional violation he is asserting in each claim. In fact, the
only indication that Mr. Jones is raising a federal constitutional claim is a single
reference to due process in claim three. Mr. Jones also fails to allege specific facts in
support of his claims that demonstrate his federal constitutional rights have been
violated. 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. Jones “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, Mr. Jones must identify the specific federal constitutional
right allegedly violated in each claim he is asserting and he must provide specific factual
allegations in support of each asserted claim. 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
ORDERED that, within thirty (30) days from the date of this order, Mr. Jones
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file an amended application that clarifies the federal constitutional claims he is
asserting. It is
FURTHER ORDERED that Mr. Jones shall obtain the appropriate, 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. Jones fails within the time allowed to file an
amended application that complies with this order, the action will be dismissed without
further notice.
DATED October 28, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher

United States Magistrate Judge

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