Bingham v. Trani et al

Filing 6

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION, by Magistrate Judge Gordon P. Gallagher on 6/12/2015. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01229-GPG
MICHAEL WAYNE BINGHAM,
Native American "Chocta" National - "Texan" Stateless - Nonresident Non-Taxpayer
Transient Choctaw,
Applicant,
v.
TRAVIS TRANI, Warden, CDOC, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION

Applicant, James Bingham, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Bingham has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF Nos. 1 & 4). The court must
construe the application liberally because Mr. Bingham 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. Bingham indicates in the application that he is challenging the validity of his
conviction in Adams County Court case number 01CR430. However, the application is
deficient because Mr. Bingham fails to provide a clear statement of the claims he is
asserting and he 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). Therefore, Mr. Bingham
will be ordered to file an amended application if he wishes to pursue his claims in this
action.
Mr. Bingham is advised that habeas corpus relief is warranted only if he “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. Bingham 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.
Bingham file an amended application that provides a clear statement of the federal
constitutional claims he is asserting. It is
FURTHER ORDERED that Mr. Bingham shall obtain the appropriate, courtapproved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 form
2

(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. Bingham fails within the time allowed to file an
amended application that complies with this order, the action will be dismissed without
further notice.
DATED June 12, 2015, at Denver, Colorado.
BY THE COURT:

s/Gordon P. Gallagher
United States Magistrate Judge

3