                                                                          F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                         November 9, 2006
                                 TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                         Clerk of Court

 G EN E A LLEN ,
              Petitioner-Appellant,                       No. 06-1249
 v.                                               (D.C. No. 06-CV-569-ZLW )
 STATE OF COLORADO, County of                              (D . Colo.)
 Brighton and County of Adams, real
 party in interest; C OLO RA D O
 ATTO RN EY G ENERAL,
              Respondents-Appellees.

                                      OR DER


Before K ELLY, M cK AY, and LUCERO, Circuit Judges.


      This is a pro se § 2254 appeal. The magistrate judge rejected the

Petitioner’s initial filing because it failed to comply with Fed. R. Civ. P. 8

requirements, did not appear to have exhausted state court remedies, and likely

was time-barred under 28 U.S.C. § 2244(d). Petitioner was instructed to file an

amended application that addressed these latter two concerns and more clearly

explained his allegations. The magistrate judge requested that Petitioner explain

why he had referenced two separate conviction dates, spaced some seven years

apart. The magistrate judge also asked that Petitioner explain why he had filed a

§ 2255 action with the United States D istrict Court for the District of Columbia

that allegedly related to the Colorado state criminal case he was challenging in
the instant action.

      The district court dismissed Petitioner’s application pursuant to Fed. R.

Civ. P. 8 after reviewing the amended application because “[t]he burden

[Petitioner] places upon the Court to identify, interpret, and respond to his

specific claims is unreasonable.” Order and Judgment of Dismissal at 3, No. 06-

CV-00569-BNB (D. Colo. M ay 24, 2006).

      W e review the district court’s dismissal without prejudice for an abuse of

discretion. Tucker v. Belaski, 86 F.3d 1167 (table), 1996 W L 273891, at *1 (10th

Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires a short and plain

statement of the claim showing that the petitioner is entitled to relief. 1 Conley v.

Gibson, 355 U.S. 41, 47 (1957). Although the requirements at this stage are de

minimus, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002), and we

must liberally construe Petitioner’s pleadings because he is proceeding pro se,

see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), we should not act as

Petitioner’s advocate, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).




      1
        Rule 11 of the Rules Governing Section 2254 Cases provides that “[t]he
Federal Rules of Civil Procedure, to the extent that they are not inconsistent with
any statutory provisions or these rules, may be applied to a proceeding under
these rules.” See also Sloan v. Pugh, 351 F.3d 1319, 1322 (10th Cir. 2003); Fed.
R. Civ. P. 81(a)(2). Although Rule 2 of the Rules Governing Section 2254 Cases
does address to some extent what a habeas petitioner should include in his § 2254
petition, that Rule is not inconsistent with Fed. R. Civ. P. 8(a)’s requirement of “a
short and plain statement” of the petitioner's claim.

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      After reviewing Petitioner’s original and amended applications for habeas

relief, Petitioner’s brief, and the record on appeal, we agree with the district

court that Petitioner has failed adequately to explain the basis for his application

or to address the concerns raised by the magistrate judge. For substantially the

same reasons set forth by the magistrate judge and reiterated by the district court,

we conclude dismissal of Petitioner’s habeas application under Fed. R. Civ. P. 8

was not an abuse of discretion.

      Petitioner’s application for a certificate of appealability (“COA”) was also

referred to the panel for decision. In order for this court to grant a COA,

Petitioner must make “a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). W e agree with the district court that Petitioner

has made no such showing, since Petitioner’s claims of Fifth, Sixth, and

Fourteenth A mendment violations are devoid of supporting allegations. In

addition, Petitioner needs to attack such constitutional infirmities at the state

court first, which the district court was not able to discern he had done.

      Accordingly, we D EN Y the certificate of appealability, AFFIRM the

dismissal without prejudice, but GR ANT in forma pauperis status.

                                                Entered for the Court


                                                M onroe G. M cKay
                                                Circuit Judge




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