Hamilton v. Bird et al

Filing 21

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/9/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01691-GPG
JAN B. HAMILTON,
Applicant,
v.
DON BIRD, Pitkin County Jail,
D. MULDOON, Capt., Fairplay, CO, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL
Applicant, Jan B. Hamilton, is detained in the Pitkin County Detention Center in
Aspen, Colorado. She initiated this action on August 6, 2015, by filing, pro se, an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2254 (ECF No. 2). Ms.
Hamilton has paid the $5.00 filing fee.
The Court construes Ms. Hamilton’s filings liberally because she 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 be an advocate for a
pro se litigant. See Hall, 935 F.2d at 1110.
I. Procedural Background
On August 13, 2015, Magistrate Judge Gordon P. Gallagher reviewed the ' 2254
Application and determined that it was deficient because it failed to comply with the
pleading requirements of Fed.R.Civ.P. 8 and requested monetary relief, which is not
available in a habeas corpus proceeding. (ECF No. 4). Magistrate Judge Gallagher

ordered Ms. Hamilton to file an Amended Application, on the court-approved form, within
30 days. (Id.). The Clerk of the Court mailed to Plaintiff a copy of the court-approved
form for filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2254 the
same day. (ECF No. 5).
On August 19, 2015, Ms. Hamilton filed a non-conforming APetition under 28
U.S.C. ' 2254 for Writ of Custody of Habeas Corpus by a Person in State Custody@,@ in
which she stated that she is challenging her state court criminal convictions in Pitkin
County Case Nos. 10CR76 and 11CR38. (ECF No. 7).
On August 20, 2015, the Court ordered Applicant to show cause, in writing, within
30 days, why the Petition should not be dismissed for failure to exhaust state court
remedies, based on Ms. Hamilton=s allegations that is currently seeking state appellate or
post-conviction relief challenging the validity of the March 15, 2015 jail sentences
imposed in Pitkin County Court Case Nos. 10CR76 and 11CR38 after her probation was
revoked. (ECF No. 9 at 2).
On August 31, 2015, Applicant filed a APetition to Show Cause in Two Cases
(14M143 and 10CR76)@ (ECF No. 13). The Court construes the Petition liberally as Ms.
Hamilton=s response to the August 20 Order to Show Cause. Ms. Hamilton clarifies in
the Response the state court convictions that she is challenging in each of her five
pending habeas cases:
15-cv-1691-GPG: Case 14M143
15-cv-1791-GPG: Case 10CR76
15-cv-01792-GPG: Case 11CR30
15-cv-01879-GPG: Case 14M30
15-cv-01882-GPG: Case 14M92
Given the clarification, Magistrate Judge Gallagher issued an Order on September
1, 2015 (ECF No. 14), directing Ms. Hamilton to file a Second Amended Application, on

the court-approved form, which addresses the validity of her conviction in Pitkin County
Case No. 14M143. Magistrate Judge Gallagher further instructed Ms. Hamilton to
indicate whether she has exhausted available state court remedies in Case No. 14M143,
and attach any pertinent state court decisions. (Id.). Applicant was also ordered to
comply with the pleading requirements of Fed.R.Civ.P. 8, as discussed in the August 13
Order (ECF No. 4). (Id.). Finally, Magistrate Judge Gallagher directed the clerk of court
to mail to Ms. Hamilton a copy of the court-approved Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. ' 2254. (Id.).
On September 14, 2015, Ms. Hamilton notified the court that she had been
transferred from the Park County jail, in Fairplay, Colorado, to the Pitkin County Detention
Center, in Aspen, Colorado. (ECF No. 15). Magistrate Judge Gallagher thereafter
issued a Minute Order on September 16, 2015, directing the clerk of the court to resend
to Applicant a copy of the September 1 Order, as well as a copy of the court-approved
form for filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. ' 2254.
(ECF No. 18). Magistrate Judge Gallagher ordered Applicant to file the Second
Amended Application within 30 days of the September 16 Order.
Ms. Hamilton filed a [Second Amended] ' 2254 Application, on the court-approved
form, on October 6, 2015. (ECF No. 20).
II. Analysis of the Second Amended Application
A. Fed. R. Civ. P. 8
Ms. Hamilton was warned in the August 13 and September 1 Orders that her
amended ' 2254 Applications must comply with the pleading requirements of Rule 8 of
the Federal Rules of Civil Procedure. (See ECF Nos. 4, 14).
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The Federal Rules of Civil Procedure apply to applications for habeas corpus
relief. See Fed. R. Civ. P. 81(a)(4); Browder v. Director, Dep=t of Corrections, 434 U.S.
257, 269 (1978); Ewing v. Rodgers, 826 F.2d 967, 969-70 (10th Cir. 1987). Pursuant to
Fed. R. Civ. P. 8(a), a pleading Ashall contain (1) a short and plain statement of the basis
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.@ Fed. R. Civ. P.
8(d)(1) provides that A[e]ach allegation must be simple, concise, and direct.@ Taken
together, Rules 8(a) and (d)(1) underscore the emphasis placed on clarity and brevity by
the federal pleading rules. Prolix, vague, or unintelligible pleadings violate the
requirements of Rule 8. In addition, Rule 4(c) of the Rules Governing Section ' 2254
Cases in the United States District Courts requires that an application Aspecify all grounds
for relief available to the petitioner@ and Astate the facts supporting each ground.@
Ms. Hamilton=s [Second Amended] Application is sometimes unintelligible and
otherwise fails to set forth facts supporting a claim for relief that is actionable in a habeas
corpus proceeding. Applicant does not specify what crime(s) she was convicted of in
Pitkin County Court Case 14M143, but she asserts the following claims: (1) AMurder
18-2-101, C.R.S.@; (2) Aviolations of 18 U.S.C. 249, C.R.S. 18-9-121"; and, (3) 42 U.S.C.
' 1983 violations. (ECF No. 20, at 5-6).
Federal habeas corpus relief is appropriate under 28 U.S.C. ' 2254 only if the
Applicant show that she Ais in custody in violation of the Constitution or the laws of
the United States.@ 28 U.S.C. ' 2254(a). In claims one and two, Ms. Hamilton asserts
that various persons violated state and federal criminal laws, but she does not allege any
facts to show that her state court conviction is invalid under federal law. Furthermore,
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claim three asserts a civil rights violation that is not cognizable in a habeas corpus action.
See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) (holding that
conditions-of-confinement claims must be brought in 42 U.S.C. ' 1983 civil rights
complaint rather than in a habeas petition). See also Preiser v. Rodriguez, 411 U.S.
475, 484 (1973) (AThe 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.@).
The Court finds that the [Second Amended] Application fails to comply with Fed. R.
Civ. P. 8.

A dismissal under Rule 8 is without prejudice. See Nasious v. Two Unknown

B.I.C.E. Agents, 492 F.3d 1158, 1162 n. 3 (10th Cir. 2007).
In addition, Ms. Hamilton=s factual allegations suggest that she has not yet
exhausted her state court remedies. Applicant alleges that she filed an appeal of her
county court conviction with the state district court on July 24, 2015. (ECF No. 20 at 11).
However, she does not state facts, or provide documentation, to show that the district
court has ruled on her appeal. Ms. Hamilton is reminded that she is required to exhaust
any constitutional claims in the state courts before seeking federal habeas corpus relief.
28 U.S.C. ' 2254(b); see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
Accordingly, it is
ORDERED that the [Second Amended] Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2254 (ECF No. 20) and this action are DISMISSED WITHOUT
PREJUDICE pursuant to Fed. R. Civ. P. 41(b) for Ms. Hamilton=s failure to comply with
the pleading requirements of Fed. R. Civ. P. 8. It is

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FURTHER ORDERED that no certificate of appealability will issue because jurists
of reason would not debate the correctness of this procedural ruling and Ms. Hamilton 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
for the purpose of appeal. 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. See
Coppedge v. United States, 369 U.S. 438 (1962). If Ms. Hamilton files a notice of appeal
he must also 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. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
DATED October 9, 2015, at Denver, Colorado.
BY THE COURT:

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

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