Tillotson v. Hale et al

Filing 4

ORDER Directing Applicant to File Amended Application, by Magistrate Judge Gordon P. Gallagher on 3/11/2015. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00292-GPG
CHRIS TILLOTSON,
Applicant,
v.
RON HALE, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, Chris Tillotson, is confined at the Colorado Mental Health Institute at
Pueblo, Colorado. Mr. Tillotson has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) and a Prisoner’s Motion and Af fidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF
No. 3). The Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C.
§ 1915 in a Habeas Corpus Action will be denied as moot because Mr. Tillotson paid
the $5.00 filing fee for this habeas corpus action.
The court must construe the application liberally because Mr. Tillotson 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 (10 th 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 discussed
below, Mr. Tillotson will be ordered to file an amended application if he wishes to
pursue his claims in this action.

The application is deficient because Mr. Tillotson fails to provide a clear
statement of the claims he is asserting. Mr. Tillotson alleges he is challenging the
validity of his conviction for assault on a police officer in Arapahoe County District Court
case number 03CR1023. Mr. Tillotson apparently claims he should not have been
convicted because he was subjected to excessive force when Officer Mike Hawkins
shot him in the back while he was surrendering and that he wrongfully was imprisoned
for three years for a crime he did not commit. As relief he asks that the conviction be
vacated and that he be awarded damages for pain and suffering and wrongful
imprisonment.
The court notes initially that Mr. Tillotson may not pursue any claims for
damages in this habeas corpus action. “The essence of habeas corpus is an attack by
a person in custody upon the legality of that custody, and . . . the traditional function of
the writ is to secure release from illegal custody.” See Preiser v. Rodriguez, 411 U.S.
475, 484 (1973). If Mr. Tillotson wishes to pursue any claims for damages, he must do
so in a separate civil rights action.
Mr. Tillotson also may not pursue any claims seeking to overturn the validity of
his conviction unless he clarifies what those claims are and provides specific factual
allegations that demonstrate his federal constitutional rights have been violated.
Habeas corpus relief is warranted only if Mr. Tillotson “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. Tillotson must identify the specific federal constitutional right
allegedly violated in each claim he is asserting and he must provide specific factual
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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 (10 th Cir. 1992) (per curiam). Furthermore, 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 (10 th Cir. 2005).
Accordingly, it is
ORDERED that the Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3) is denied as
moot. It is
FURTHER ORDERED that, within thirty (30) days from the date of this order,
Mr. Tillotson file an amended application that clarifies the federal constitutional claims
he is asserting. It is
FURTHER ORDERED that Mr. Tillotson 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. Tillotson fails within the time allowed to file an
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amended application that complies with this order, the action will be dismissed without
further notice.
DATED March 11, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

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