Hollis v. Faulk et al

Filing 10

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/27/15. No certificate of appealability will issue, and 9 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00199-GPG
CRAIG HOLLIS,
Applicant,
v.
JAMES FAULK,
Respondent.

ORDER OF DISMISSAL

Applicant, Craig Hollis, is a prisoner in the custody of the Colorado Department of
Corrections. Mr. Hollis initiated this action by filing pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) purportedly challenging the
validity of his conviction or sentence in Logan County District Court case number
13CR151.
On February 22, 2015, Magistrate Judge Gordon P. Gallagher ordered Mr. Hollis
to file an amended application that clarifies the claims he is asserting. Magistrate Judge
Gallagher noted that Mr. Hollis failed to allege facts that explain why he believes his
custody is unlawful, he failed to provide a clear statement of any claim that
demonstrates his federal constitutional rights have been violated, and it was not even
clear whether Mr. Hollis was challenging the validity of his conviction and sentence or
whether he was challenging the execution of his sentence. Magistrate Judge Gallagher
advised Mr. Hollis that the pleading rules applicable to a habeas corpus action are more

demanding than the rules applicable to ordinary civil actions, see Mayle v. Felix, 545
U.S. 644, 655 (2005), and that 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). On March 24, 2015, Mr. Hollis filed an amended application for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 8) and a Prisoner’s
Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 9).
The Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915
will be denied as moot because Mr. Hollis previously was granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 in this action.
The Court must construe the amended application liberally because Mr. Hollis 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.
The Court has reviewed the amended application and finds that Mr. Hollis still
fails to provide a clear statement of any federal constitutional claims. Mr. Hollis
contends he should not have to serve more time than his original sentence and he asks
to be released on his original mandatory release date of July 23, 2015. However, he
does not claim his federal constitutional rights have been violated and he does not
allege specific facts that might support an arguable federal constitutional claim. In fact,
the claim Mr. Hollis asserts in the amended application is nearly identical to the claim he
asserted in the original application that Magistrate Judge Gallagher determined was
deficient.
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The instant action will be dismissed without prejudice because Mr. Hollis fails to
assert clearly any violations of his federal constitutional rights. 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) and the amended
application (ECF No. 8) are denied and the action is dismissed without prejudice for the
reasons specified in this order. It is
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

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FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 9) is denied as moot.
DATED at Denver, Colorado, this

27th

day of

March

, 2015.

BY THE COURT:

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

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