Weaver v. Turley

Filing 21

ORDER TO AMEND DEFICIENT PETITION AND MEMORANDUM DECISION. Signed by Judge Tena Campbell on 10/27/2011. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

MICHAEL WEAVER,

ORDER TO AMEND DEFICIENT
PETITION & MEMORANDUM DECISION

Petitioner,
v.

Case No. 2:08-CV-746 TC

STEVEN TURLEY,
District Judge Tena Campbell
Respondent.

Petitioner, Michael Weaver, an inmate at Utah State Prison,
filed a pro se habeas corpus petition.
(2011).

See 28 U.S.C.S. § 2254

The Court ordered Respondent to answer the petition.

In

the answer, Respondent argued that Petitioner's issues had not
been exhausted because of pending appeals in state court.
Reviewing the petition now, in light of Respondent's argument and
the many supplemental documents submitted by Petitioner, the
Court concludes that Petitioner must submit an amended petition.
Deficiencies in Petition:
Petition:
(a)

is rendered confusing by Petitioner's provision of
further information in the unconventional format of his
many supplemental documents.

(b)

should be updated to show the status of his state-court
appeals of his state post-conviction application(s).

(c)

has claims appearing to be based on the illegality of
Petitioner's current confinement; however, the petition
was apparently not submitted using the legal help

Petitioner is entitled to by his institution under the
Constitution. See Lewis v. Casey, 518 U.S. 343, 356
(1996) (requiring prisoners be given "'adequate law
libraries or adequate assistance from persons trained
in the law' . . . to ensure that inmates . . . have a
reasonably adequate opportunity to file nonfrivolous
legal claims challenging their convictions or
conditions of confinement") (quoting Bounds v. Smith,
430 U.S. 817, 828 (1977) (emphasis added)).
(d)

possibly alleges claims regarding Petitioner's
conditions of confinement, which would be
inappropriately brought in this habeas petition.
Instructions to Petitioner
Under Rule 8 of the Federal Rules of Civil Procedure an

initial pleading is required to contain "(1) a short and plain
statement of the grounds upon which the court's jurisdiction
depends, . . . (2) a short and plain statement of the claim
showing that the pleader is entitled to relief, and (3) a demand
for judgment for the relief the pleader seeks."
8(a).

Fed. R. Civ. P.

The requirements of Rule 8(a) are intended to guarantee

"that [respondents] enjoy fair notice of what the claims against
them are and the grounds upon which they rest."

TV Commc'ns

Network, Inc. v. ESPN, Inc., 767 F. Supp. 1062, 1069 (D. Colo.
1991), aff’d, 964 F.2d 1022 (10th Cir. 1992).
Pro se litigants are not excused from compliance with the
minimal pleading requirements of Rule 8.

"This is so because a

pro se [litigant] requires no special legal training to recount

2

the facts surrounding his alleged injury, and he must provide
such facts if the court is to determine whether he makes out a
claim on which relief can be granted."
1106, 1009 (10th Cir. 1991).

Hall v. Bellmon, 935 F.2d

Moreover, "it is not the proper

function of the Court to assume the role of advocate for a pro se
litigant."

Id. at 1110.

Thus, the Court cannot "supply

additional facts, [or] construct a legal theory for [petitioner]
that assumes facts that have not been pleaded."

Dunn v. White,

880 F.2d 1188, 1197 (10th Cir. 1989).
Petitioner should consider the following points before
refiling his petition.

First, the revised petition must stand

entirely on its own and shall not refer to, or incorporate by
reference, any portion of the original petition or any other
documents previously filed by Petitioner.

See Murray v.

Archambo, 132 F.3d 609, 612 (10th Cir. 1998) (amendment
supercedes original).

Second, the petitioner must clearly state

whom his custodian is and name that person as the respondent.
See R. 2, Rs. Governing § 2254 Cases in the U.S. Dist. Courts.
Third, Petitioner may generally not bring civil rights claims as
to the conditions of his confinement in a habeas corpus petition.
Fourth, any claims about Petitioner's underlying conviction
and/or sentencing should be brought under 28 U.S.C.S. § 2254; any
claims about the execution of Petitioner's sentence should be
3

brought under 28 U.S.C.S. § 2241.

Finally, Petitioner should

seek help from the prison's contract attorneys with preparing
initial pleadings, such as the amended petition ordered here.
ORDER
Based on the foregoing, IT IS HEREBY ORDERED that:
(1) Petitioner shall have THIRTY DAYS from the date of this
order to cure the deficiencies noted above;
(2) the Clerk's Office shall mail Petitioner a copy of the
Pro Se Litigant Guide with a proper form petition for him to
complete, according to the directions; and,
(3) if Petitioner fails to timely cure the above noted
deficiencies in accordance with the instructions herein this
action will be dismissed without further notice.
DATED this 27th day of October, 2011.
BY THE COURT:

_____________________________
JUDGE TENA CAMPBELL
United States District Court

4