Eshbach v. Jefferson County Combined Court Building

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Gordon P. Gallagher, United States Magistrate Judge.

         This matter comes before the Court on the second amended pleading (ECF No. 11)^[1] 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. 15.)^[2]

         The 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 (10^th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         The 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.

         I. DISCUSSION

         Mr. 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 months.

         On 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 Court.

         Mr. 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 (10^th 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 (10^th Cir. 2005).

         Mr. 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 the following:

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 follows:

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 ...