Briseno v. Cozza-Rhodes
Filing
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ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION by Magistrate Judge Gordon P. Gallagher on 2/11/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00191-GPG
JUAN BRISENO,
Applicant,
v.
THERESA COZZA-RHODES,
Respondent.
ORDER DIRECTING APPLICANT TO FILE AMENDED APPLICATION
Applicant, Juan Briseno, is a prisoner in the custody of the Federal Bureau of
Prisons. Mr. Briseno has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). The court must construe the application
liberally because Mr. Briseno 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. Briseno will be ordered to file an amended application if he wishes to pursue
his claims in this action.
The application is deficient because Mr. Briseno fails to provide a clear statement
of the claims he is asserting. Mr. Briseno claims he was denied due process in a prison
disciplinary proceeding. However, he does not allege any facts in the application that
demonstrate how he was denied due process and the vague, conclusory, and generic
statements in the continuation page attached to the application (see ECF No. 1 at 6) do
not demonstrate he is entitled to habeas corpus relief. 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).
Habeas corpus relief is warranted only if Mr. Briseno “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, which apply to this habeas corpus action pursuant to §
2241, Mr. Briseno must allege specific facts in support of his claim that demonstrate he is
entitled to relief. 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
[government] 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. Briseno
file an amended application that clarifies the due process claim he is asserting. It is
FURTHER ORDERED that Mr. Briseno shall obtain the appropriate,
court-approved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
form (with the assistance of his case manager or the facility’s legal assistant), along with
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the applicable instructions, at www.cod.uscourts.gov. It is
FURTHER ORDERED that, if Mr. Briseno fails within the time allowed to file an
amended application that complies with this order, the action will be dismissed without
further notice.
DATED February 11, 2016, at Denver, Colorado.
BY THE COURT:
Gordon P. Gallagher
United States Magistrate Judge
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