United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
P. Gallagher, United States Magistrate Judge.
matter comes before the Court on the second amended pleading
(ECF No. 11) filed pro se by Petitioner,
Michael Allen Eshbach, on March 13, 2019. The matter has been
referred to this Magistrate Judge for recommendation (ECF No.
Court must construe the second amended pleading and other
papers filed by Mr. Eshbach 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.
Court has reviewed the filings to date. The Court has
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the second amended pleading be
denied and the action be dismissed.
Eshbach initiated this action by filing a Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody (ECF No. 1). On February 19, 2019, after being
directed to use the proper form, Mr. Eshbach filed an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 8). On February 21, 2019, the Court
ordered Mr. Eshbach to file a second amended pleading that
names a proper Respondent and that provides a clear statement
of the federal constitutional claims he is asserting. As
noted above, the second amended pleading was filed on March
13, 2019. Mr. Eshbach is challenging the validity of a state
court misdemeanor conviction for indecent exposure. Mr.
Eshbach alleges he was forced to plead guilty to that charge
and was sentenced in November 2017 to a term of eighteen
April 2, 2019, the Court ordered Mr. Eshbach to file a third
amended pleading within thirty days. The Court specifically
noted that the second amended pleading is not on the proper
pleading form, Mr. Eshbach failed to name a proper
Respondent, and he failed to provide a clear statement of the
claims he is asserting. Mr. Eshbach has not filed a third
amended pleading within the time allowed. Therefore, the
second amended pleading is the operative pleading before the
Eshbach fails to provide a clear statement of any federal
constitutional claims in the second amended pleading that
demonstrate he is entitled to relief in this habeas corpus
action. As noted in the order directing Mr. Eshbach to file a
third amended pleading, the pleading rules applicable to a
habeas corpus action are more demanding than the rules
applicable to ordinary civil actions, see Mayle v.
Felix, 545 U.S. 644, 655 (2005), and naked allegations
of constitutional violations are not cognizable in a habeas
corpus action, see Ruark v. Gunter, 958 F.2d 318,
319 (10th Cir. 1992) (per curiam). Furthermore,
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).
Eshbach lists four claims for relief in the second amended
pleading. However, only one of the claims identifies the
federal constitutional right allegedly violated. More
importantly, Mr. Eshbach fails in each of his claims to
allege specific facts that demonstrate his federal
constitutional rights have been violated. The entirety of
claim one, which is identified as a Sixth Amendment claim, is
During the time between November 2016 and December 2016 when
my case was scheduled for trial[, ] I was standing before
Judge Ryan James Stuart[.] I attempted to tell him that I
wanted to testify against all witnesses and victims involved.
I was denied by the court when Judge Stuart shrugged his
shoulders [g]esturing he did not care.
(ECF No. 11 at 6.) In claim two, which is captioned
“Forced to register as a sex offender, ” Mr.
Eshbach alleges the following:
December 2016 my public defender approached me shoving papers
at me saying here sign this. After five minutes of not
wanting to sign the forms and arguing with my public defender
she said shut up and sign this so we can get this over with.
After being forced to sign sex offender forms I stood in
front of Judge Stuart waiting for him to ask me if anyone
forced me to sign the sex offender form but he never did. All
he asked me was is this your signature and just moved on.
(ECF No. 11 at 8.) In claim three, which is captioned
“Illegal sentence, ” Mr. Eshbach alleges as
November 2017 Judge Ryan James Stuart sentenced the
Petitioner to sixteen months jail and add[ed] on an extra two
months. Even though Judge Stuart was comp[lete]ly ...