1:08-cv-01777 | D. Colo. | Sep 10, 2008
lN THE UN|TED STATES D|STR|CT COURT
FOR THE D|STR[CT OF COLORADO
warren srArlEsLorE
s-rnrcr
D NVER, coLonAogOURT
Civil Action No. 08-cv-O1777-BNB
SEP 10 grigg
Hu:vlsERro cALvAN, GREGORYC LANcHAr/~
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App|icant, \`Ci§j<
V.
UN|TED STATES OF AIV|ER|CA,
Respondent.
ORDER D|RECT|NG APPL|CANT TO F|LE AN|ENDED PLEAD|NG
Applicant, Humberto Galvan, is incarcerated at the Cibola County Correctional
Center in |V|ilan, New lV|exico. Nlr. Galvan has filed pro se a motion seeking leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915 and an application for a writ
of habeas corpus pursuant to 28 U.S.C. § 2241. The in forma pauperis motion will be
granted
The court must construe the application liberally because Mr. Galvan is not
represented by an attorney. 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); Hai!
v. Beflmon, 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). HcWever, the court should not be an
advocate for a pro se litigant See Hall, 935 F,2d at 1110. For the reasons stated
below, lVlr. Galvan will be ordered to file an amended pleading.
The court has reviewed the habeas corpus application and finds that it is
deficient because l\/lr. Galvan fails to allege specific facts in support of his claim to
demonstrate that his federal constitutional rights have been violated and he fails to
specify the relief he is seeking in this action. The entire application consists of Nlr.
Galvan describing the nature of the case as “CANCELLAT|ON OF DEPORTAT|ON"
and the assertion of one claim of ineffective assistance of counsel with the following
supporting fact: “COUNSEL NEVER EXPLAIN [sic] THE CONSEQUENCES OF BEEN
[sic] DEPORTED.”
Nlr. Galvan must do more than make a conclusory allegation that his
constitutional rights have been violated He must allege specific facts to support each
asserted claim. Naked allegations of constitutional violations are not cognizable in a
habeas corpus action. See Ruark v. Gunter, 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 (1 0th Cir. 1992) (per
curiam). Therefore, lVlr. Galvan Wi|l be ordered to file an amended application in Which
he provides specific facts in support of the claim he is raising lV|r. Galvan also must
specify the relief he is seeking in this action. Accordingly, it is
ORDERED that the motion for leave to proceed in forma pauperis filed on
August 131 2008, is granted lt is
FURTHER ORDERED that Nlr. Galvan file within thirty (30) days from the date
of this order an amended application for a writ of habeas corpus that complies with
this crder. lt is
FURTHER ORDERED that the clerk of the court mail to lVlr. Galvan, together
with a copy of this order, two copies of the following form: Applicaticn for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. lt is
FURTHER ORDERED that if lVlr. Galvan fails within the time allowed to file an
amended application for a Writ of habeas corpus as directed, the action will be
dismissed without further notice.
DATED September 10, 2008, at Denver, Co|crado.
BY THE COURT:
s/ Bovd N. Boland
United States lVlagistrate Judge
|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. 08-cv-O1777-BNB
Humberto Galvan
Reg. No. 32868-013
Cibo|a County Corr. Center
PO Box 3540
lV|i|an, NM 87021
l hereby certify that l have mailed a copy of the ORDER and two copies of the
Application for a Writ of H eas Corpus Pursuant to 28 U.S.C. § 2241 form to the
H[Uf §
above~named individuals on
GREG Y LANGHA|V|1 CLERK
s : nw
Deputy C|erk