Mardis v. Falk
Filing
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ORDER Directing Applicant to File Amended Application, by Magistrate Judge Gordon P. Gallagher on 12/10/14. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03055-GPG
ALEXANDER S. MARDIS, Pro Se In Forma Pauperis,
Applicant,
v.
JAMES FALK, Warden, SCF,
Respondent.
ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION
Applicant, Alexander S. Mardis, is a prisoner in the custody of the Colorado
Department of Corrections currently incarcerated at the correctional facility in Sterling,
Colorado. Mr. Mardis has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). The Court must construe the Application
liberally because Mr. Mardis 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. Mardis will be ordered to file an amended application if he wishes to
pursue any claims in this action.
The application is deficient because Mr. Mardis makes only vague and
conclusory allegations that his custody is unlawful. He fails to explain why he believes
his custody is unlawful and he fails to provide a clear statement of his claims that
demonstrate his federal constitutional rights have been violated. The claims he raises
involve various issues regarding errors in his state court conviction (claim 1), parole
revocations and other parole issues (claim 2), and computation of his sentences (claim
3). Thus, it unclear whether Mr. Mardis is challenging the validity of his state court
criminal conviction, a claim that properly would be asserted in a habeas corpus action
pursuant to 28 U.S.C. § 2254, or whether he is challenging the execution of his
sentence, a claim that properly is asserted pursuant to § 2241. 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. Mardis “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 even if Mr.
Mardis is challenging the execution of his sentence pursuant to § 2241, Mr. Mardis
must provide specific factual allegations in support of the federal constitutional claim 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 (10 th
Cir. 1992) (per curiam). Accordingly, it is
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ORDERED that, within thirty (30) days from the date of this order, Mr. Mardis
file an amended application that clarifies the federal constitutional claims he is
asserting. It is
FURTHER ORDERED that Mr. Mardis 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. Mardis fails within the time allowed to file an
amended application that complies with this order, the action will be dismissed without
further notice.
DATED December 10, 2014, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge
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