Taylor v. State of Utah

Filing 42

MEMORANDUM DECISION & ORDER TO AMEND DEFICIENT THIRD AMENDED PETITION: Petitioner shall have THIRTY DAYS from this Order's date to cure the deficiencies. The Clerk's Office shall mail Petitioner a copy of the Pro Se Litigant Guide with a proper form petition and/or civil-rights complaint for him to complete, according to the directions. If Petitioner fails to timely cure the above noted deficiencies, as instructed, this action will be dismissed without further notice. D enying 38 Motion for constitutional challenge; Denying 41 Motion for order to show cause; Denying 26 Motion for Order to Show Cause; Denying 28 Motion for Preliminary Injunction; Denying 32 Motion to Appoint Counsel; Denying 33 Motion for Service of Process (Prisoner). Signed by Judge Clark Waddoups on 04/08/2019. (kpf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH

ROY D. TAYLOR
Petitioner,
v.

MEMORANDUM DECISION &
ORDER TO AMEND DEFICIENT
THIRD AMENDED PETITION
Case No. 2:18-CV-8-CW

STATE OF UTAH,

District Judge Clark Waddoups
Respondent.

Petitioner, Roy D. Taylor, an inmate at Utah State Prison, filed a third amended pro se
habeas-corpus petition. See 28 U.S.C.S. § 2254 (2019). Reviewing the Third Amended Petition,
(Doc No. 37), the Court concludes that it must be amended to cure the below deficiencies if
Petitioner wishes to further pursue his claims.
DEFICIENCIES IN THIRD AMENDED PETITION
Third Amended Petition:
(a)

is not on the form required by and provided to Petitioner by this Court.

(b)

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--e.g., by contract attorneys. 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)).

REPEATED 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." Fed. R. Civ. P. 8(a). 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 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." Hall v. Bellmon, 935 F.2d 1106,
1009 (10th Cir. 1991). 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 general 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 or first amended petition or any other documents
previously filed by Petitioner. See Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998)
(amendment supersedes original). Second, Petitioner must clearly state whom his custodian is
and name that person (a warden or ultimate supervisor of an imprisonment facility) as the

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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 (2019); any claims about the execution of Petitioner's sentence
should be brought under id. § 2241. Fifth, Petitioner should seek help to prepare initial pleadings
from legal resources (e.g., contract attorneys) available where he is held.
MOTION FOR APPOINTED COUNSEL
The Court now evaluates Petitioner's motion for appointed counsel. The Court initially
notes that Petitioner has no constitutional right to appointed pro bono counsel in a federal habeas
corpus case. See United States v. Lewis, No. 97-3135-SAC, 91-10047-01-SAC, 1998 WL
1054227, at *3 (D. Kan. December 9, 1998). Moreover, because no evidentiary hearing is
required here, Petitioner has no statutory right to counsel. See Rule 8(c), R. Governing § 2254
Cases in U.S. Dist. Courts. However, the Court may in its discretion appoint counsel when "the
interests of justice so require" for a "financially eligible person" bringing a § 2254 petition. See
18 U.S.C.S. § 3006A(a)(2)(B) (2019).
The Court has reviewed the filings in this case and determines that justice does not
require appointed counsel at this time. First, it is yet unclear that Petitioner has asserted any
colorable claims. See Lewis, 1998 WL 1054227, at *3; Oliver v. United States, 961 F.2d 1339,
1343 (7th Cir. 1992). Second, Petitioner has shown "the ability to investigate the facts necessary
for [the] issues and to articulate them in a meaningful fashion.” Lewis, 1998 WL 1054227, at *3;
Oliver, 961 F.2d at 1343. Finally, the issues in this case appear "straightforward and not so

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complex as to require counsel's assistance.” Lewis, 1998 WL 1054227, at *3; Oliver, 961 F.2d at
1343. The Court thus denies for now Petitioner's motion for appointed counsel.
ORDER
Based on the above, IT IS HEREBY ORDERED that:
(1) Petitioner shall have THIRTY FINAL DAYS from this Order’s date 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 and/or civil-rights complaint for him to complete, according to the directions.
(3) If Petitioner fails to timely cure the above-noted deficiencies, as instructed here, this action
will be dismissed without further notice.
(4) Petitioner’s motion for order to show cause is DENIED. (Doc. No. 26.) Petitioner asks here
for the state to respond to his petition; however, there is no valid petition on file at this time.
(5) Petitioner’s motion for preliminary injunctive relief is DENIED. (Doc. No. 28.) Petitioner’s
arguments here regard alleged inadequate medical care which is inappropriate in this habeas
context. Petitioner should file such claims in a prisoner civil-rights complaint if he wishes to
pursue them further.
(6) Petitioner's motion for appointed counsel is DENIED. (Doc. No. 32.) However, if it later
appears that counsel may be needed or of specific help, the Court may appoint an attorney to
appear on Petitioner's behalf.
(7) Petitioner’s motion for service of process is DENIED. (Doc. No. 33.) There is no valid
petition on file here as of this Order. Further, if a valid petition is later filed, no prompting is

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needed for the Court to order an answer from Respondent. Rs. 4 & 5, Rs. Governing § 2254
Cases in the U.S. Dist. Cts.
(7) Petitioner's motions for “constitutional challenge” and for the Court to use the proper habeas
standard of review are DENIED. (See Doc. Nos. 38 & 41.) A federal habeas petition necessarily
contains a constitutional challenge; further, the Court will of course apply the proper law to
Petitioner’s case.
DATED this 8th day of April, 2019.
BY THE COURT:

JUDGE CLARK WADDOUPS
United States District Court

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