ease1:05-cv-01112-i\/isK-PAC Documem4 Filéd'os/zz/os uSDC Colorado Page lois iN THE uNiTEo sTATEs oisTRicT couRT _ FoR THE olsTRicT oF coLoRAoo F l L E D UN|TED STATES DiSTRlCT COURT DEi\-‘VER, COLC~RADO Civi| Action No. 05-cv-1112-OES JUN 2 2 2005 Pl-llLLlP ESP|NOZA, Gi`~tcoc,i~\-i/ CT. LANGHAM CLERK App|icant, V. AL ESTEP, Warden, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents. ORDER D|RECTING APPL|CANT TO F|LE A|V|ENDED APPL|CATION Applicant Phi|lip Espinoza is a prisoner in the custody of the Coiorado Department of Corrections at the Limon Correctional Faci|ity at Limon, Co|orado. l\/|r. Espinoza has filed pro se an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court must construe the application liberally because lVlr. Espinoza is representing himse|f. See Har'nes v. Kerner, 404 U.S. 519" date_filed="1972-02-22" court="SCOTUS" case_name="Haines v. Kerner">404 U.S. 519, 520-21 (1972); HaH v. Bel!mon, 935 F.2d 1106" date_filed="1991-06-03" court="10th Cir." case_name="Kenneth Hall v. Henry Bellmon">935 F.2d 1106, 1110 (10th Cir. 1991). However, the court should not be the pro se |itigant‘s advocate. See Hall, 935 F._2d at 1110. For the reasons stated below, |Vlr. Espinoza Wi|l be ordered to file an amended application. lVlr. Espinoza is challenging the validity of his 1994 conviction in the Adams County District Court. He asserts eleven claims for relief in the application. However, he fails to assert specific facts in support of some of the claims he raises. For examp|e, l\/Ir. Espinoza alleges in his fifth claim for relief that his rights under the Confrontation C|ause were violated by admission of a DEA tape recording but he alleges in support ease 1:05-cv-01112-l\/isK-PAC "bocumem 4 Filed 06/22/05 usDC Colorado Page 2 of 5 of this claim only that the trial court failed to conduct a constitutional analysis. He fails to allege facts to support a claim that his constitutional rights Were violatedl Rule 4 of the Ru|es Governing Section 2254 Cases in the United States District Courts requires that |Vir. Espinoza go beyond notice pleading See Blackfedge v. Afh'son, 431 U.S. 83, 75 n.7 (1977). He must allege specific facts to support each asserted claim. Na|958 F.2d 318" date_filed="1992-03-06" court="10th Cir." case_name="Theodore Ruark v. Frank Gunter, Gale A. Norton, Attorney General, of the State of Colorado">958 F.2d 318, 319 (10"‘ Cir. 1992) (per curiam). Furthermore, it is not clear exactly how many claims l\/lr. Espinoza is asserting in this action. He alleges at one point that claims one through sixteen have not been fairly presented to the state's highest court. However, as noted above, he asserts only eleven claims for relief in the application IVIr. Espinoza also provides confusing information regarding when his conviction was affirmed on direct appeal and the dates relevant to the postconviction motion he alleges he filed. For exampie, i\/|r. Espinoza alleges that the Co|orado Court of Appea|s affirmed thejudgment of conviction on direct appeal on October¢ll 1996, and that the Co|orado Suprerne Court denied his petition for writ of certiorari on direct appeal on September 3, 1996. Obvious|y, the Co|orado Supreme Court could not have denied certiorari review before the Colorado Court of Appea|s issued its order. Regarding the postconviction motion, |V|r. Espinoza fails to allege when the motion was filed. The court needs this information to determine whether the instant action is timely filed. Therefore, l\/Ir. Espinoza will be ordered to file an amended application in Which he clarifies the precise claims he is asserting and the specific facts that support each asserted claim. For any postconviction motion that |Vlr. Espinoza wishes to have the 2 Case 1:05-cv-01112-|\/|SK-PAC Document 4 Filed 06/22/05 USDC Co|orado Page 3 of 5 court consider in determining Whetherthe instant action is timely filed, he must allege when the motion was filed, when it was denied, why it was denied, whether he appealed from the denial of the motion, when the appeal was decidedl and why the order denying him postconviction relief was affirmed on appeal. |n addition, |Vlr. Espinoza must demonstrate in the amended application that he has exhausted state remedies. See 28 U.S.C. § 2254(b)(1). An application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant‘s rights. See O’Su!h‘van v. Boer_ckel, 528 U.S. 838" date_filed="1999-10-04" court="SCOTUS" case_name="Hoskins v. Federal Communications Commission">528 U.S. 838 (1999); Dever v. Kansas Sfate Penitentiary, 36 l'-'.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claims have been presented fairly to the state courts. See Casti!fe v. Peoples, 489 U.S. 346" date_filed="1989-05-15" court="SCOTUS" case_name="Castille v. Peoples">489 U.S. 346, 351 (1989). Fair presentation requires that the federal issues be presented properly “to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever, 36 F.3d at 1534. “The exhaustion requirement is not one to be overlooked |ight|y.” Hernandez v. Starbuck, 69 F.3d 1089l 1092 (10th Cir. 1995). A state prisoner bringing a federal habeas corpus action bears the burden of showing that he has exhausted a|| available state remedies See Miranda v. Cooper, 967 F.2d 392" date_filed="1992-06-17" court="10th Cir." case_name="Valerio Ernest Miranda v. Thomas Cooper, Superintendent, and Frank Gunter, (Gunther) Sic, Director, D.O.C.">967 F.2d 392, 398 (10th Cir. 1992). IV|r. Espinoza alleges both that he has exhausted state remedies for each claim and that he has not fairly presented any of his claims to the state’s highest court. As a resuit, it is not clear whether he has exhausted state remedies According|y, it is Case 1:05-cv-01112-l\/lSK-PAC Document 4 Filed 06/22/05 USDC Colorado Page 4 of 5 ORDERED that l\/lr. Espinoza file within thirty (30) days from the date of this order an amended habeas corpus application that complies with this order. lt is FURTHER ORDERED that the clerk of the court mall to l\/lr. Espinoza, together with a copy of this order, one copy ofthe following form: Application for a Writ of l-iabeas Corpus Pursuant to 28 U.S.C. § 2254. lt is FURTHER ORDERED that, if Mr. Espinoza fails within the time allowed to file an amended application as directed, the application will be denied and the action will be dismissed without further notice. DATED at Denver, Colorado, this 22 clay of QV;M/ . 2005. BY THE COURT: o. EowARD scHLATTER United States lVlagistrate Judge Case 1:05-cv-01112-l\/lSK-PAC Document 4 Filed 06/22/05 USDC Colorado Page 5 of 5 |N THE UN|TED STATES D|STR|CT COURT FOR THE D|STR|CT OF COLORADO CERT|F|CATE OF MA|L|NG Civil Action No. 05-cv-01112-OES Phillip Espinoza Reg. No. 43235 Limon Correctional Faci|ity 49030 State Hwy. 71 Limon, CO 80826 l hereby certify that l have mailed a copy of the ORDER and two copies of App|ication for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 to the above- named individuals on 24 GREGORY C NGHAM, CLERK By: % M-/ \/lj%buty Clerk