Tillman v. Maketa

Filing 13

ORDER of Dismissal. ORDERED that the habeas corpus application (ECF No. 1) and the amended applications (ECF Nos. 4 & 6) are denied and the action is dismissed without prejudice for failure to exhaust state remedies. ORDERED that no certificate o f appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit by Judge Lewis T. Babcock on 06/18/12. (jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00672-BNB
TYRONE TILLMAN,
Applicant,
v.
TERRY MAKETA, El Paso Cty. Sheriff,
Respondent.

ORDER OF DISMISSAL

Applicant, Tyrone Tillman, is an inmate at the El Paso County Criminal Justice
Center in Colorado Springs, Colorado. Mr. Tillman initiated this action by filing pro se
an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1)
challenging a no-bond parole hold that he contends is preventing him from posting bond
on criminal charges pending against him and obtaining his release. On April 3, 2012,
Mr. Tillman filed on the proper form an amended application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 (ECF No. 4). On April 5, 2012, Mr. Tillman filed another
amended application for a writ of habeas corpus pursuant to § 2241 (ECF No. 6) that
substantively is identical to the amended application filed on April 3.
On April 4, 2012, Magistrate Judge Boyd N. Boland ordered Respondent to file a
preliminary response limited to addressing the affirmative defenses of timeliness under
28 U.S.C. § 2244(d) and exhaustion of state remedies if Respondent intends to raise
either or both of those defenses in this action. Magistrate Judge Boland also directed

Respondent to advise the Court who the proper Respondent is and move for
substitution of party if Respondent is not the appropriate party to respond to Mr.
Tillman’s claims challenging a parole hold. On April 30, 2012, Magistrate Judge Boland
entered a second order directing Respondent to file a preliminary response because it
was not clear whether Respondent received a copy of the April 4 order.
On May 18, 2012, Tom Clements, Executive Director of the Colorado
Department of Corrections (“DOC”), through the Colorado Attorney General, filed a
preliminary response (ECF No. 12) to the amended habeas corpus application arguing
that Mr. Tillman’s claims are unexhausted. Respondent has not filed either a
preliminary response or a motion for substitution of party. Nevertheless, because it
appears that Mr. Clements is the proper party to respond to Mr. Tillman’s claims
challenging his parole hold, the Court will address the affirmative defense raised by Mr.
Clements in the preliminary response. Mr. Tillman has not filed a reply to the
preliminary response filed by Mr. Clements despite being given an opportunity to do so.
Mr. Tillman did file a document titled Applicant’s Reply (ECF No. 8) on April 12, 2012,
apparently in response to Magistrate Judge Boland’s first order directing Respondent to
file a preliminary response, but Applicant’s Reply was filed before Mr. Clements filed the
preliminary response and Applicant’s Reply does not address the affirmative defense of
exhaustion of state remedies.
The Court must construe the amended applications liberally because Mr. Tillman
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 (10th Cir. 1991). However, the Court should not
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
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below, the Court will dismiss the action for failure to exhaust state remedies.
As noted above, Mr. Tillman is challenging a no-bond parole hold that he
contends is preventing him from posting bond on criminal charges pending against him
and obtaining his release. According to Mr. Tillman, he was arrested for a parole
violation on October 25, 2011, and new criminal charges also were filed against him.
He contends that the parole revocation proceedings have been continued pending
disposition of the new criminal charges in violation of Colorado state law and that,
because he cannot post bond on the new criminal charges while the revocation
proceedings are continued, his constitutional rights are being violated.
Mr. Clements argues that Mr. Tillman’s claims are not exhausted. Mr. Tillman
must exhaust state court remedies before he may pursue his claims in a habeas corpus
action in this Court. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). 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. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
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 v. Connor,
404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.
1989). Although fair presentation does not require a habeas corpus petitioner to cite
“book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal quotation
marks omitted), “[i]t is not enough that all the facts necessary to support the federal
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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).
Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner seeking
habeas corpus relief in federal court 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).
Mr. Clements specifically argues that Mr. Tillman has not exhausted state
remedies for his claims because, although Mr. Tillman filed a state habeas corpus
petition that was denied by the El Paso County District Court on March 27, 2012, Mr.
Tillman did not seek appellate review of the order denying his state habeas petition and,
as a result, he did not fairly present his claims to the state’s highest court. As noted
above, Mr. Tillman has not filed a reply to the preliminary response and he has not
responded to the argument that he has failed to exhaust state remedies. There also is
no indication in the amended applications that Mr. Tillman has fairly presented his
claims to the state’s highest court. As a result, the Court finds that Mr. Tillman has
failed to satisfy his burden of demonstrating that he exhausted all available state
remedies for his claims in this action. The instant action will be dismissed for failure to
exhaust state remedies.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any
appeal from this order would not be taken in good faith and therefore in forma pauperis
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status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Applicant files a notice of appeal he also must 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 habeas corpus application (ECF No. 1) and the amended
applications (ECF Nos. 4 & 6) are denied and the action is dismissed without prejudice
for failure to exhaust state remedies. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

18th

day of

June

, 2012.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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