United States District Court, D. Utah
ROY D. TAYLOR Petitioner,
STATE OF UTAH, Respondent.
MEMORANDUM DECISION & ORDER TO AMEND DEFICIENT
THIRD AMENDED PETITION
WADDOUPS JUDGE United States District Court
Roy D. Taylor, an inmate at Utah State Prison, filed a third
amended pro se habeas-corpus petition. See
28 U.S.C.S. § 2254 (2019). Reviewing the Third Amended
Petition, (Doc No. 37), the Court concludes that it must be
amended to cure the below deficiencies if Petitioner wishes
to further pursue his claims.
IN THIRD AMENDED PETITION
(a) is not on the form required by and provided to Petitioner
by this Court.
(b) has claims appearing to be based on the illegality of
Petitioner's current confinement; however, the petition
was apparently not submitted using the legal help Petitioner
is entitled to by his institution under the
Constitution--e.g., by contract attorneys. See Lewis v.
Casey, 518 U.S. 343, 356 (1996) (requiring prisoners be
given "'adequate law libraries or
adequate assistance from persons trained in the
law' . . . to ensure that inmates . . . have a reasonably
adequate opportunity to file nonfrivolous legal claims
challenging their convictions or conditions of
confinement") (quoting Bounds v. Smith, 430
U.S. 817, 828 (1977) (emphasis added)).
INSTRUCTIONS TO PETITIONER
Rule 8 of the Federal Rules of Civil Procedure an initial
pleading is required to contain "(1) a short and plain
statement of the grounds upon which the court's
jurisdiction depends, . . . (2) a short and plain statement
of the claim showing that the pleader is entitled to relief,
and (3) a demand for judgment for the relief the pleader
seeks." Fed.R.Civ.P. 8(a). The requirements of Rule 8(a)
are intended to guarantee "that [respondents] enjoy fair
notice of what the claims against them are and the grounds
upon which they rest." TV Commc'ns Network, Inc.
v. ESPN, Inc., 767 F.Supp. 1062, 1069 (D. Colo. 1991),
aff'd, 964 F.2d 1022 (10th Cir. 1992).
litigants are not excused from compliance with the minimal
pleading requirements of Rule 8. "This is so because a
pro se [litigant] requires no special legal training to
recount the facts surrounding his alleged injury, and he must
provide such facts if the court is to determine whether he
makes out a claim on which relief can be granted."
Hall v. Bellmon, 935 F.2d 1106, 1009 (10th Cir.
1991). Moreover, "it is not the proper function of the
Court to assume the role of advocate for a pro se
litigant." Id. at 1110. Thus, the Court cannot
"supply additional facts, [or] construct a legal theory
for [petitioner] that assumes facts that have not been
pleaded." Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989).
should consider the following general points before refiling
his petition. First, the revised petition must stand entirely
on its own and shall not refer to, or incorporate by
reference, any portion of the original or first amended
petition or any other documents previously filed by
Petitioner. See Murray v. Archambo, 132 F.3d 609,
612 (10th Cir. 1998) (amendment supersedes original). Second,
Petitioner must clearly state whom his custodian is and name
that person (a warden or ultimate supervisor of an
imprisonment facility) as the respondent. See R. 2,
Rs. Governing § 2254 Cases in the U.S. Dist. Courts.
Third, Petitioner may generally not bring civil-rights claims
as to the conditions of his confinement in a habeas-corpus
petition. Fourth, any claims about Petitioner's
underlying conviction and/or sentencing should be brought
under 28 U.S.C.S. § 2254 (2019); any claims about the
execution of Petitioner's sentence should be brought
under id. § 2241. Fifth, Petitioner should seek
help to prepare initial pleadings from legal resources (e.g.,
contract attorneys) available where he is held.
FOR APPOINTED COUNSEL
Court now evaluates Petitioner's motion for appointed
counsel. The Court initially notes that Petitioner has no
constitutional right to appointed pro bono counsel
in a federal habeas corpus case. See United States v.
Lewis, No. 97-3135-SAC, 91-10047-01-SAC, 1998 WL
1054227, at *3 (D. Kan. December 9, 1998). Moreover, because
no evidentiary hearing is required here, Petitioner has no
statutory right to counsel. See Rule 8(c), R.
Governing § 2254 Cases in U.S. Dist. Courts. However,
the Court may in its discretion appoint counsel when
"the interests of justice so require" for a
"financially eligible person" bringing a §
2254 petition. See 18 U.S.C.S. § 3006A(a)(2)(B)
Court has reviewed the filings in this case and determines
that justice does not require appointed counsel at this time.
First, it is yet unclear that Petitioner has asserted any
colorable claims. See Lewis, 1998 WL 1054227, at *3;
Oliver v. United States, 961 F.2d 1339, 1343 (7th
Cir. 1992). Second, Petitioner has shown "the ability to
investigate the facts necessary for [the] issues and to
articulate them in a meaningful fashion.”
Lewis, 1998 WL 1054227, at *3; Oliver, 961
F.2d at 1343. Finally, the issues in this case appear
"straightforward and not so complex as to require