Scott v. Buena Vista Correctional Center

Filing 22

ORDER re: 1 Application for Writ of Habeas Corpus filed by Lynn Eugene Scott is denied for lack of subject matter jurisdiction. No certificate of appealability will issue because Petitioner has not made a substantial showing that jurists of reason would find it debatable whether the jurisdictional and procedural rulings are correct and whether the petition states a valid claim of the denial of a constitutional right. This case is dismissed without prejudice. by Judge William J. Martinez on 8/25/2011. (erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 11-cv-00361-WJM
LYNN EUGENE SCOTT,
Applicant,
v.
WARDEN OF THE BUENA VISTA CORRECTIONAL FACILITY,
Respondent.

ORDER DISMISSING APPLICATION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241

This matter is before the Court on Petitioner Lynn Eugene Scott’s pro se
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“the Petition”)
challenging the validity of a February 2008 prison disciplinary conviction that resulted in
the postponement of his reparole date. Respondent filed a Response to Order to Show
Cause and the Petitioner was given an opportunity to file a Traverse. Also pending are
Petitioner’s Motion for Judgment on the Pleadings [Dkt. #17], Petitioner’s Motion to
Amend [Doc. #18], and Respondent’s Motion to Dismiss Matter as Moot [Dkt. #20].
Having considered the same, the Court concludes that the Petition must be dismissed
for lack of subject matter jurisdiction.
I.

Background
Petitioner was convicted in Colorado state court of two separate drug counts and

was sentenced on March 24, 2000 to ten years of imprisonment with the Colorado
Department of Corrections (DOC), plus a period of mandatory parole pursuant to

statute. See Motion to Dismiss, Affidavit of Mary Carlson, Ex. A, at ¶ 4, and attchs. 1, 2.
In May 2004, he was sentenced for a conviction on two charges of escape to six months
imprisonment and a two-year period of parole. Id. at ¶ 4, and attch. 3. On June 19,
2006, the Colorado Board of Parole granted Petitioner early release to parole. Carlson
Aff., at ¶ 5, and attchs. 4, 5. The mandatory five-year parole period was ordered to
commence April 11, 2007 in Denver. Id. On July 3, 2007, a parole complaint was filed,
alleging that Petitioner committed numerous violations of his parole agreement,
including absconding from parole supervision. Id., at ¶ 6. On July 9, 2007, the Parole
Board found Petitioner guilty of absconding and other violations and ordered Petitioner’s
parole revoked for 180 days. Id. at ¶ 7, attch. 7. Petitioner was returned to the DOC to
serve the revocation. Id. Petitioner’s reparole date was scheduled for January 5, 2008.
Id. at ¶ 8.
On October 19, 2007, Petitioner was convicted of a class II Code of Penal
Discipline (COPD) infraction for advocating a facility disruption at Sterling Correctional
Facility (SCF). Carlson Aff., ¶ 9. In a hearing held on November 14, 2007, the Parole
Board rescinded Petitioner’s January 5, 2008 reparole date and ordered that the period
of revocation be extended 180 days. Id., and attchs. 8, 9. Petitioner’s reparole date
was continued to May 12, 2008. Id., ¶ 10.
On February 19, 2008, Petitioner was convicted of a class II COPD infraction for
possession of another offender’s legal document at SCF. Carlson Aff., ¶ 11. In a
hearing held on March 11, 2008, the Parole Board rescinded Petitioner’s May 12, 2008
reparole date and ordered that the period of revocation be extended 150 days from the

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date of the hearing. Id., and attchs. 10, 11. Petitioner’s reparole date was readjusted to
August 5, 2008. Id. at ¶ 12.
Petitioner was reparoled on August 5, 2008. Carlson Aff., at ¶ 13, and attches.
12, 13. On September 12, 2008, a parole complaint was filed against Petitioner,
alleging several violations of the parole agreement, including absconding from parole
supervision. Id. at ¶ 14, and attch. 14. Following a November 20, 2008 hearing, the
Parole Board found Petitioner guilty of several parole violations and revoked his parole
to the DOC for the remainder of the term. Id. at ¶ 15, and attch. 15. Petitioner was
returned to the DOC on November 24, 2008 to serve his parole revocation period. Id.
His estimated discharge date is May 3, 2012. Id. at ¶ 16.
II.

Standard of Review
The Court must construe the Petition and other papers filed by Petitioner liberally

because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520 (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.
An action brought by a federal prisoner pursuant to 28 U.S.C. § 2241 is one that
challenges the execution of a sentence. See Davis v. Roberts, 425 F.3d 830, 833 (10th
Cir. 2005); McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th
Cir.1997) (“a § 2241 attack on the execution of a sentence may challenge some matters
that occur at prison, such as deprivation of good-time credits and other prison
disciplinary matters.”). A district court is only authorized to issue the writ of habeas
corpus when the petitioner is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). An application for habeas relief
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may be granted only “when the remedy requested would result in the prisoner’s
immediate or speedier release from . . . confinement.” Boutwell v. Keating, 399 F.3d
1203, 1209 (10th Cir. 2005).
Petitioner challenges his February 19, 2008 prison disciplinary conviction for
possession of another offender’s legal document as violative of his rights under the
Fourteenth Amendment Due Process Clause. See Wolff v. McDonnell, 418 U.S. 539,
563-67 (1974) (setting forth due process requirements in prison disciplinary
proceedings); Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454
(1985) (holding that requirements of due process are satisfied if some evidence
supports prison disciplinary decision). He does not seek any specific relief.
Respondent does not assert the affirmative defenses of timeliness or failure to
exhaust state court remedies. See Dkt. #10. Respondent argues, however, that the
Petition should be dismissed as moot.
III.

Analysis
A.

Mootness

The Court must address the issue of mootness before reaching the merits of
Petitioner’s claim. “A habeas corpus petition is moot when it no longer presents a case
or controversy under Article III, § 2, of the Constitution.” Aragon v. Shanks, 144 F.3d
690, 691 (10th Cir.1998) (citing Spencer v. Kemna, 523 U.S. 1 (1998)). To satisfy this
case or controversy requirement, “the plaintiff must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be redressed by a
favorable judicial decision.” Id. (quotation omitted). Put simply, “[a]n issue becomes
moot when it becomes impossible for the court to grant ‘any effectual relief whatsoever’
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on that issue to a prevailing party.” United States v. Hahn, 359 F.3d 1315, 1323 (10th
Cir.2004) (quoting Smith v. Plati, 258 F.3d 1167, 1179 (10th Cir. 2001)). “Mootness is a
threshold issue because the existence of a live case or controversy is a constitutional
prerequisite to federal court jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d
863, 867 (10th Cir. 1996).
In this habeas proceeding, Petitioner challenges the constitutionality of his April
2008 disciplinary conviction which caused the Parole Board to postpone his reparole
date for several months. However, once Petitioner was reparoled on August 5, 2008,
he no longer had a redressable injury arising from the postponement. The Court cannot
shorten the period of the postponement because it was terminated by Petitioner’s
reparole. As such, “the best this court could do for him would be to declare [in an
advisory opinion] that he spent longer in prison than he should have . . . . [t]hat is not
enough to satisfy Article III.” Rhodes v. Judiscak,

F.3d

, 2011 WL 3134731, at *3

(10th Cir. July 27, 2011). Petitioner therefore must establish the existence of continuing
“collateral consequences” as a result of the postponement to demonstrate a live case or
controversy. See Spencer, 523 U.S. at 7-8 (holding that when a petitioner challenges a
parole revocation but has completed the sentence imposed upon revocation, the
petitioner bears the burden of demonstrating the existence of actual collateral
consequences resulting from the revocation”); see also Vandenberg v. Rodgers, 801
F.2d 377, 377-78 (10th Cir.1986) (dismissing habeas petition as moot where petitioner
challenged determinations that delayed his parole date, but petitioner was released on
parole at time of appeal).

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Petitioner counters that the Petition is not moot because he is still serving a term
of mandatory parole on his state court sentence. Petitioner maintains that he should
have been released from DOC custody on his state sentences in March 2008 and his
current detention, therefore, is illegal. See Motion for Judgment on the Pleadings, at 35; Motion to Amend, at 4-8. This argument is wide of the mark. The Petition challenges
the execution of Petitioner’s sentence as it was affected by his February 1998 prison
disciplinary conviction–i.e., the postponement of his reparole from May 12, 2008 to
August 5, 2008. The Petition does not assert any constitutional or federal statutory
claims concerning the execution of Petitioner’s sentence following his reparole in August
2008 and his subsequent reincarceration in November 2008. And such concerns are
not “collateral consequences” of the postponement of his reparole in 2008. See
Spencer, 523 U.S. at 15-16 (recognizing that the possibility a prisoner may violate the
law upon his release from state confinement “does not constitute a sufficient collateral
consequence to defeat mootness”). Because Petitioner does not articulate any
continuing “collateral consequences” as a result of the postponement of his reparole
from January to May 2008, he fails to present a case or controversy for purposes of
Article III. See generally id., at 14-17 (rejecting petitioner’s asserted injuries attributable
to parole revocation).
Not to be deterred, Petitioner seeks leave to amend his Petition to assert an
additional claim disputing the legality of his present confinement. A claim challenging
Petitioner’s present incarceration is not moot. The Court therefore will address the
merits of Petitioner’s request below.
B.

Motion to Amend
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Petitioner has filed a Motion for Judgment on the Pleadings [Dkt. #17] and a
related Motion to Amend (the Motion for Judgment on the Pleadings) [Doc. #18] in
which he asserts that his current incarceration is illegal because he has already served
the ten-and-a-half-year sentence imposed by the state court. Petitioner contends the
Colorado Parole Board has imposed a new sentence by incarcerating him for the term
of his mandatory parole, in violation of due process. The Court construes Petitioner’s
motions liberally and together as requesting permission to amend his Petition to assert
an additional claim challenging the lawfulness of his present incarceration. The request
to amend will be denied because Petitioner failed to exhaust state remedies before
seeking federal habeas relief.
A state prisoner generally is required to exhaust state court remedies prior to
seeking relief pursuant to 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862,
866 (10th Cir. 2000); Williams v. O'Brien, 792 F.2d 986, 987 (10th Cir.1986). The
exhaustion requirement is satisfied once the federal claim has been presented fairly to
the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation
requires that the federal issue be presented properly “to the highest state court, either
by direct review of the conviction or in a postconviction attack.” Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion requirement is not
one to be overlooked lightly.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir.
1995). A state prisoner bringing a federal habeas corpus action bears the burden of
showing that he has exhausted all available state remedies. See Miranda v. Cooper,
967 F.2d 392, 398 (10th Cir. 1992).

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Petitioner alleges that he filed a petition for habeas corpus relief in Chaffee
County District Court Case No. 09cv88 on August 9, 2009, asserting that his present
incarceration violates his Fourteenth Amendment due process rights. Response to
Motion to Dismiss as Moot, at 10. Petitioner further alleges that the state district court
denied his habeas petition in an August 25, 2009 Minute Order. Id. Petitioner then filed
an amended habeas petition, which was denied by the state district court on September
18, 2009. Id. Instead of filing a direct appeal with the Colorado Supreme Court
pursuant to COLO. REV. STAT. § 13-4-102(1)(e) (2008), Petitioner sought discretionary
relief with the Colorado Supreme Court in a motion filed pursuant to Colo. R. App. P. 21.
Id. The Colorado Supreme Court denied Petitioner’s Rule 21 motion on December 21,
2009. Id. On April 14, 2010, Petitioner filed an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, in Lynn E. Scott v. Green, Warden of B.V.C.C., Civil
Action No. 10-cv-00881-ZLW. Petitioner argued that his confinement exceeded the
sentence of imprisonment imposed by the state trial court. That action was dismissed
for Petitioner’s failure to exhaust state remedies. (Dkt. #7). Petitioner’s challenge to his
present detention fails on exhaustion grounds for the same reasons detailed in the
Order of Dismissal in Civil Action No. 10-cv-00881-ZLW. The Court therefore finds that
allowing Petitioner leave to amend his Petition to assert a claim challenging the legality
of his current imprisonment would be futile.

Accordingly, it is ordered:
1.

Petitioner’s Motion for Judgment on the Pleadings [Dkt. #17] and Motion to
Amend [Dkt. #18], which the Court construes liberally and together as a
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motion to amend the Petition to assert a claim challenging the legality of
Petitioner’s present incarceration, are denied.
2.

Respondent’s Motion to Dismiss Matter as Moot [Dkt. #30] is GRANTED.

3.

Petitioner Lynn Eugene Scott’s Application For a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 is denied for lack of subject matter
jurisdiction.

4.

No certificate of appealability will issue because Petitioner has not made a
substantial showing that jurists of reason would find it debatable whether
the jurisdictional and procedural rulings are correct and whether the
petition states a valid claim of the denial of a constitutional right.

5.

This case is dismissed without prejudice.

Dated this 25th day of August, 2011.
BY THE COURT:

_______________________
William J. Martínez
United States District Judge

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