Frazier v. Suthers et al

Filing 3

ORDER Directing Plaintiff to File Amended Application, by Magistrate Judge Gordon P. Gallagher on 5/15/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01031-GPG
(The above civil action number must appear on all future papers
sent to the court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
FELA J. FRAZIER,
Applicant,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections; and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING PLAINTIFF TO FILE AMENDED APPLICATION

Applicant, Fela J. Frazier, is in the custody of the Colorado Department of
Corrections (CDOC) at the Sterling Correctional Facility in Sterling, Colorado.
Mr. Small initiated this action by filing a “Petition for Writ of Habeas Corpus by the
Habeas Corpus Act.” (ECF No. 1). He has paid the filing fee.
The Court reviews the Application liberally because Mr. Frazier is not
represented by counsel. 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 act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. The Court has reviewed
the Petition and has determined that it is deficient. For the reasons discussed below,
Mr. Frazier will be ordered to file an Amended Application using the court-approved
forms.

It is unclear what claims Mr. Frazier is raising in this action. He appears to claim
that COLO. REV. STATS. (C.R.S.) § 17-27.5-104 is an illegal bill of attainder in that it
increases parolees sentences by adding a new charge of escape, when such conduct
should be considered only a parole violation and not a separate criminal offense.
“Petitions under § 2241 are used to attack the execution of a sentence, see
Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996), while a petition under § 2254
challenges the validity of a state court conviction or sentence. See McIntosh v. United
States Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997). If Mr. Frazier is challenging
the validity of a state court conviction under C.R.S. § 17-27.5-104 , such claim must be
asserted in a proceeding under 28 U.S.C. § 2254. If he is challenging the execution of
his sentence, he must pursue that claim under 28 U.S.C. § 2241.
Mr. Frazier is reminded that the Federal Rules of Civil Procedure apply to
applications for habeas corpus relief. See Fed. R. Civ. P. 81(a)(4). Applicant must
allege specific facts in support of each claim for relief to show a violation of his
constitutional rights. See Blackledge v. Allison, 431 U.S. 63, 75 n.7 (1977) (“the petition
is expected to state facts that point to a ‘real possibility of constitutional error,’” quoting
Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases). See
also Fed. R. Civ. P. 8(a) (requiring that a pleading “must contain (1) a short and plain
statement of the 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.”).
Mr. Frazier is also reminded that the proper Respondent in a habeas corpus
action is the prisoner’s current custodian – i.e., the warden of the facility where the
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prisoner is incarcerated. See 28 U.S.C. §2243 (stating that the writ “shall be directed to
the person having custody of the person detained”); Rumsfeld v. Padilla, 542 U.S. 426,
435 (2004). Accordingly, it is
ORDERED that Applicant, Fela J. Frazier, file either a § 2241 Application or a §
2254 Application, on the proper court-approved form, that complies with the directives in
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 Mr. Frazier shall obtain a copy of the court-approved
Applications for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and/or 28
U.S.C. § 2254, with the assistance of his case manager or the facility’s legal assistant,
at www.cod.uscourts.gov and shall use the form in filing the Amended Application. It is
FURTHER ORDERED that, if Applicant fails to file an Amended Application that
complies with this order within thirty (30) days from the date of this order, the
application(s) may be dismissed, in whole or in part, without further notice. The
dismissal shall be without prejudice.
DATED May 15, 2015, at Denver, Colorado.
BY THE COURT:

/s Gordon P. Gallagher
United States Magistrate Judge

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