Hamlin v. Zavaras

Filing 10

ORDER of Dismissal. ORDERED that the Application is denied and the action dismissed without prejudice. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 1/9/12. (lyg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02482-BNB
JOJO HAMLIN,
Applicant,
v.
ARISTEDES W. ZAVARAS,
Respondent.

ORDER OF DISMISSAL

Applicant, JoJo Hamlin, is a prisoner in the custody of the Colorado Department
of Corrections (DOC) who currently is incarcerated at the Bent County Correctional
Facility in Las Animas, Colorado. Mr. Hamlin, acting pro se, initiated this action by filing
an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Mr. Hamlin
has been granted leave to proceed pursuant to 28 U.S.C. § 1915.
On September 29, 2011, Magistrate Judge Boyd N. Boland ordered Respondent
to file a preliminary response to the habeas corpus application and address the
affirmative defenses of timeliness and exhaustion of state court remedies. On
November 3, 2011, Respondent filed a Response. Mr. Hamlin filed a Reply on
November 23, 2011.
The Court must construe Mr. Hamlin’s Application and Reply liberally because he
is a pro se litigant. 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 act as a pro se

litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the
action will be dismissed.
Mr. Hamlin asserts that he was given 517 days of presentence confinement
credit by the trial court in his state criminal case, but the DOC has improperly applied
the time in calculating the length of his sentence. He argues that as a result he is
required to serve seventeen and a half years rather than fourteen and a half years.
Respondent argues that Mr. Hamlin’s claims are not exhausted.
An applicant must exhaust state remedies before he may pursue his claims in a
habeas corpus action in this Court. See Wilson v. Jones, 430 F.3d 1113, 1118 (10th
Cir. 2005). Like other habeas applicants, a § 2241 applicant fulfills the requirement to
exhaust state remedies once the issue has been “fairly presented to the state courts.”
Picard v. Connor, 404 U.S. 270, 275 (1971); Hawkins v. Mullin, 291 F.3d 658, 668 (10th
Cir. 2002). This requirement “is satisfied if the federal issue has been properly
presented to the highest state court.” Dever v. Kan. 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).
Furthermore, the “substance of a federal habeas corpus claim” must have been
presented to the state courts in order to satisfy the fair presentation requirement.
Picard, 404 U.S. at 278; see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.
1989). Although fair presentation does not require a habeas corpus applicant to cite
“book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal quotation
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marks omitted), “[i]t is not enough that all the facts necessary to support the federal
claim were before the state courts,” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per
curiam). A claim must be presented as a federal constitutional claim in the state court
proceedings in order to be exhausted. See Duncan v. Henry, 513 U.S. 364, 365-66
(1995) (per curiam).
Respondent specifically argues that Mr. Hamlin has not exhausted state
remedies because he raised the issue regarding proper calculation of his sentence in a
Colo. R. Crim. P. 35(c) postconviction motion, and a Rule 35(c) proceeding is not the
proper means to obtain the remedy he sought. Respondent states that based on
Meredith v. Zavaras, 954 P.2d 597, 601 (Colo. 1998), Mr. Hamlin should have brought
an action for mandamus relief in state court, or a civil habeas action, to challenge the
alleged improper calculation.
In his Reply, Mr. Hamlin argues that the state courts had the issue before them
but refused to address the merits. Mr. Hamlin further contends that the Colorado
Attorney General uses the exhaustion argument against all indigent inmates so he does
not have to address the merits of an inmate’s claim.
The Court has reviewed the order entered by the trial court in Mr. Hamlin’s Colo.
R. Crim. P. 35(c) postconviction motion, in which he raised the presentence
confinement credit claim, and the Colorado Court of Appeals’ (CCA’s) opinion affirming
the trial court’s denial of Mr. Hamlin’s presentence confinement claim. See Pre-Answer
Resp. at Exs. A-1 and A-2. The Court also has reviewed the findings in Edwards v.
People, 196 P.3d 1138 (Colo. 2008).

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In Mr. Hamlin’s Rule 35(c) postconviction motion, the trial court specifically
instructed Mr. Hamlin that under Edwards a sentencing court does not have the
discretion to grant or deny presentence confinement credit. Ex. A-1 at 4. The CCA
further instructed Mr. Hamlin that his remedy “lies elsewhere.” Ex. A-2 at 8.
Under state law, Mr. Hamlin’s remedy to challenge the execution of his sentence
by the DOC is not cognizable under Colo. R. Crim. P. 35(a) or (c). As found by the
CCA, Mr. Hamlin was not claiming that the trial court deprived him of his right to
presentence confinement credit or that he had a current right to release. Ex. A-2 at 8.
He, therefore, must raise his claim with the DOC and not the trial court. See Edwards,
196 P.3d at 1144. The proper manner to exhaust an execution of sentence claim is
through an action for mandamus relief in the state court, or a civil habeas action. See
Meredith, 954 P.2d at 601.
As early as December 6, 2010, when the Colorado Supreme Court denied Mr.
Hamlin’s petition for certiorari review, he was on notice that seeking relief in a Rule
35(a) or (c) postconviction motion is not the proper avenue for challenging the execution
of his sentence by the DOC. Although the trial court and the CCA did not specifically
instruct Mr. Hamlin on the proper procedure to follow regarding his execution claim, the
Court is unaware of any constitutional right to receive legal advice from a court. In fact,
a Colorado state court is not permitted to give legal advice to a party. See People v.
Altman, 960 P.2d 1164, 1173 n. 5 (Colo. 1998) (citing Espinoza v. O’Dell, 633 P.2d 455,
469 (Colo. 1981) (Erickson J. concurring) (“It is not [the court’s] province to give legal
advice.”)). Furthermore, ignorance of the law is not an excuse for failing to exhaust
state remedies. Cf. Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) ("ignorance
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of the law, even for an incarcerated pro se [applicant], generally does not excuse
prompt filing.") (quoting Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999)).
“A state prisoner is generally barred from obtaining federal habeas relief unless
the prisoner has properly presented his . . . claims through one ‘complete round of the
State’s established appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92
(2006) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). Mr. Hamlin has not
presented his claims in a request for mandamus relief or a civil habeas action for a
review on the merits. He has failed to exhaust his state remedies prior to filing this
habeas corpus action with the Court. Therefore, the Application will be denied and the
action dismissed for failure to exhaust state court remedies prior to initiating the instant
lawsuit.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Hamlin files a notice of appeal he must also pay the full $455 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application is denied and the action dismissed without
prejudice for failure to exhaust state court remedies before seeking federal court
intervention. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED January 9, 2012, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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