United States District Court, D. Colorado
ORDER DIRECTING MOVANT TO FILE AMENDED 28 U.S.C.
§ 2255 MOTION
A. BRIMMER UNITED STATES DISTRICT JUDGE.
Donald Brian Winberg is a prisoner in the custody of the
United States Bureau of Prisons, who currently is
incarcerated at the Federal Correctional Institution in Big
Spring, Texas. He initiated this action on February 27, 2017
by filing pro se a Motion under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody. Docket No. 214.
Court must construe Movant's filings liberally because he
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. For the
reasons stated below, Movant will be directed to file an
amended ' 2255 motion.
pled guilty to two counts of conspiracy to commit wire fraud
in violation of 18 U.S.C. § 1349 and to one count of an
offense committed while on release in violation of 18 U.S.C.
§ 3147. See Docket No. 145. Movant was
sentenced to a total term of eighty-seven months.
Id. On May 5, 2016, the United States Court of
Appeals for the Tenth Circuit affirmed the judgment of
conviction. See United States v. Donald Brian
Winberg, No. 15-1310 (10th Cir. May 5, 2016). Movant
asserts that he did not petition for certiorari review.
Docket No. 214 at 2.
Court has reviewed the ' 2255 motion and finds that the
motion does not comply with Rule 2(c) of the Rules Governing
Section 2255 Proceedings for the United States District
Courts. Rule 2(c) provides that A[t]he motion must
substantially follow either the form appended to these rules
or a form prescribed by a local district-court rule.@
Although Movant submitted the motion on a form that is
appended to the Rules Governing Section 2255 Proceedings, he
does not assert his claims on that form. Instead, Movant
refers to attached pages in support of the motion and fails
to provide on the form a general statement of the nature of
the Court considers the 99-page attachment, Movant's
claims are not presented in a clear and concise manner that
allows the Court and the government to know precisely how he
believes his rights have been violated and why he believes he
is entitled to relief. Movant sets forth an extended and
unnecessary discussion of the facts and legal arguments,
rather than provide a generalized statement of the facts from
which the government may form a responsive pleading. He does
not identify the nature of each of the six claims. It is
Movant's responsibility to present his claims in a
manageable and readable format that allows the Court and the
government to know what claims are being asserted and to be
able to respond to those claims.
Court does not require a long recitation of facts. Nor should
the Court or government be required to sift through
Movant's verbose allegations to determine the heart of
each claim. The general rule that pro se pleadings
must be construed liberally has limits and “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).
will be directed to amend the ' 2255 motion if he wishes
to pursue his claims. He must present his claims clearly and
concisely. Movant also must delineate each claim in a manner
that makes the nature of each claim, and the supporting
factual allegations, readily apparent.
Movant has filed an Application to Proceed in District Court
without Prepaying Fees or Costs (Long Form). Docket No. 212.
Section 2255 proceedings are not separate civil actions, but
are instead the continuation of the same criminal matter.
See United States v. Cook, 997 F.2d 1312, 1319 (10th
Cir. 1993). A movant, therefore, is not required to pay a
filing fee or to seek leave to proceed in forma pauperis.
Id. Accordingly, it is
that, on or before March 31, 2017, Movant shall file an
amended 28 U.S.C. § 2255 motion that complies with the
requirements specified in this Order. It is further
that Movant shall obtain and utilize this Court's
approved form for filing a 28 U.S.C. § 2255 motion (with
the assistance of his case manager or the facility's
legal assistant), along with the applicable instructions, at
www.cod.uscourts.gov. It is further
that, if Movant fails to file an amended 28 U.S.C. §
2255 motion as directed within thirty days from the date of
this Order, the Court will proceed to review the original
motion pursuant to the Federal Rules of Civil Procedure and
dismiss improper and insufficient claims accordingly. It is
that Movant's Motion for Appointment of Counsel, Docket
No. 210, and his Motion for Evidentiary Hearing, Docket No.
213, are denied as premature. It is further
that Movant's Application to Proceed in District Court
without Prepaying Fees or Costs, Docket ...