Castillo v. Davis et al
ORDER of Dismissal. ORDERED that Mr. Castillo's request for a stay 20 is denied. FURTHER ORDERED that the Application is denied and the action is dismissed without prejudice for failure to exhaust. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 10/17/12.(lygsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00687-BNB
JOHN DAVIS, Warden,
TOM CLEMENTS, Director, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
ORDER OF DISMISSAL
Applicant Manuel Castillo is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Correctional Complex-Main & Boot
Camp in Buena Vista, Colorado. Mr. Castillo, acting pro se, initiated this action by filing
an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Magistrate
Judge Boyd N. Boland reviewed the Application, found that Mr. Castillo failed to state
the claims and supporting facts he desired to raise in this action, and instructed Mr.
Castillo to file an Amended Application. On May 11, 2012, Mr. Castillo complied.
In the May 11 Application, Mr. Castillo raises three claims challenging the validity
of his conviction and sentence in Case No. 2004CR77 in the Yuma County District
Court of Colorado. Magistrate Judge Boyd N. Boland entered an order on May 14,
2012, directing Respondents to file a Pre-Answer Response limited to addressing the
affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state
court remedies under 28 U.S.C. § 2254(b)(1)(A). On June 27, 2012, Respondents filed
a Pre-Answer Response. Rather than filing a Reply to the Pre-Answer Response, Mr.
requested a stay of the proceedings until his Colo. R. Crim. P. 35(a) postconviction
motion is exhausted in state court. Magistrate Judge Boland directed Respondents to
respond to the request for a stay, which they did on August 17, 2012.
The Court must construe liberally Mr. Castillo’s Application and request for a stay
because he 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). The Court,
however, should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at
1110. For the reasons stated below, the Court finds the action is timely but will dismiss
the action without prejudice as a mixed petition.
A. 28 U.S.C. § 2244(d) Time-Bar
Respondents concede that Mr. Castillo’s Application is timely under 28 U.S.C.
§ 2244(d). Based on the findings below, the Court concurs that the Application is
B. State-Court Exhaustion
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s
rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). 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, 36 F.3d at 1534.
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
claim were before the state courts, or that a somewhat similar state-law claim was
made.” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per curiam) (internal citation
omitted). 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).
“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). Even if
state remedies properly have been exhausted as to one or more of the claims
presented, a habeas corpus application is subject to dismissal as a mixed petition
unless state court remedies have been exhausted for all of the claims raised. See Rose
v. Lundy, 455 U.S. 509, 522 (1982); Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir.
Respondents contend that although the Application is timely, Claim Three fails to
assert a federal constitutional violation and Claims One and Two are procedurally
defaulted. They further assert in response to Mr. Castillo’s request for a stay that even
if his claims were not procedurally defaulted in state court there is no risk that the oneyear time limitation under 28 U.S.C. § 2244(d) would expire during the pendency of the
Mr. Castillo’s current postconviction motion. Respondents further assert that when the
pending postconviction motion concludes Mr. Castillo will have seventy-eight days to
present any exhausted claims to this Court.
The United States Supreme Court has found that an applicant could preserve the
timeliness of an application by requesting that the court issue a stay and abeyance
while he continues to pursue his unexhausted claims in state court. See Pliler v. Ford,
542 U.S. 225 (2004) (O’Connor J., concurring). A stay and abeyance, however, is only
available in limited circumstances. Rhines v. Weber, 544 U.S. 269, 277 (2005). Mr.
Castillo must establish “good cause” for his failure to first exhaust the claims in state
court. Rhines, 544 U.S. at 277. For the following reasons, a stay and abeyance of this
case is not proper.
The Colorado Supreme Court (CSC) denied certiorari review on June 16, 2008,
in Mr. Castillo’s direct appeal of his conviction and sentence. See Pre-Answer Resp.,
ECF No. 19-4, Ex. D. Mr. Castillo’s conviction and sentence became final on
September 15, 2008, when the time for seeking review in the United States Supreme
Court expired. See Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001) (citing Rhine
v. Boone, 182 F.3d 1153, 1155 (10th Cir. 1999); Sup. Ct. R. 30.1. (the last day of the
period computed is included unless it is a Saturday, Sunday, in which event the period
runs until the end of the next day that is not a Saturday or Sunday). Accordingly, for
purposes of § 2244(d), time began to run on September 16, 2008, the day after Mr.
Castillo’s conviction and sentence became final.
The time ran for forty-one days until October 26, 2008, the day prior to when Mr.
Castillo filed a motion for sentence reconsideration. See Pre-Answer Resp., ECF No.
19-1, Ex. A at 8. The time was tolled from October 27, 2008, until February 9, 2009,
when the time expired for Mr. Castillo to appeal the trial court’s denial of the motion for
sentence reconsideration. See Colo. App. R. 4(b) (In 2008, an appellant had forty-five
days to file a notice of appeal.); Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000)
(“[R]egardless of whether a petitioner actually appeals a denial of a post-conviction
application, the limitations period is tolled during the period in which the petitioner could
have sought an appeal under state law.”)
The limitation period ran again from February 10, 2009, the day after the motion
for reduction of sentence was final, until September 7, 2009, the day prior to when Mr.
Castillo filed a Colo. R. Crim. P. 35(c) postconviction motion, see Pre-Answer Resp.,
ECF No. 19-1, Ex. A at 7, which is 210 days. The CSC denied certiorari review in the
Rule 35(c) postconviction motion on November 14, 2011, id., ECF No. 19-8, Ex. H.
Although Exhibit A on Page Six indicates Mr. Castillo filed a Colo. R. Crim P. 35(a)
postconviction motion on August 10, 2011, and a supplement on December 19, 2011,
both parties agree that Mr. Castillo filed his Rule 35(a) postconviction motion on
December 19, 2011, and another postconviction motion in February 2012. This Court,
therefore, finds that including the time from November 15, 2011, the day after the CSC
denied certiorari review in Mr. Castillo’s Rule 35(c) postconviction motion, until
December 18, 2011, the day prior to when Mr. Castillo filed a Rule 35(a) postconviction
motion, a total of thirty-four days, at the most 285 days have run against the one-year
time limitation period.
The time during which a proper postconviction is pending in state court is tolled
for the purposes of § 2244(d). See Habteselassie v. Novak, 209 F.3d 1208 (10th Cir.
2000). As stated above, Mr. Castillo has a postconviction proceeding pending in the
CCA. Because only 285 days have run against the one-year time limitation, the Court
finds no timeliness issue and no basis for staying the instant action until Mr. Castillo has
exhausted his state court remedies.
Based on the above findings, the Court will dismiss the instant Application
without prejudice as unexhausted and refrain from addressing the merits of
Respondents’ procedural default and lack of jurisdiction arguments.
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. Castillo files a notice of appeal he must pay the full $455.00 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 Mr. Castillo’s request for a stay, ECF No. 20, is denied. It is
FURTHER ORDERED that the Application is denied and the action is dismissed
without prejudice for failure to exhaust. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DATED at Denver, Colorado, this
17th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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