Cooley v. Timme

Filing 20

ORDER of Dismissal. The habeas corpus application 1 and the amended application 8 are denied and the action is dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied without prejudice, by Judge Lewis T. Babcock on 7/5/12. (lswsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00987-BNB
RUSSELL COOLEY,
Applicant,
v.
RAE TIMME (Warden),
Respondent.

ORDER OF DISMISSAL

Applicant, Russell Cooley, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Colorado Territorial
Correctional Facility in Cañon City, Colorado. On June 2, 2005, Mr. Cooley pleaded
guilty in this Court to the unlawful transport of firearms in United States v. Cooley, No.
05-cr-00059-RBJ-1. On September 19, 2005, he was sentenced to forty-two months of
imprisonment and three years of supervised release. The judgment was entered on the
docket on September 27, 2005.
On April 4, 2012, Mr. Cooley filed in No. 05-cr-00059-RBJ-1 a document titled
“Petition for Writ of Habeas Corpus” (ECF No. 57 in No. 05-cr-00059-RBJ-1), asking the
Court to vacate a federal detainer and issue statutory discharge documents on the
grounds that his federal sentence was fully discharged. Id. at 3, ¶ 10. He asserted that
the federal detainer prevented him from “progress[ing] normally through his Colorado
Department of Corrections concurrent sentence. Id. at 3, ¶ 11.

On April 13, 2012, the Honorable R. Brooke Jackson entered an order in No. 05cr-00059-RBJ-1 noting that Mr. Cooley’s claims challenged the computation of his
federal sentence imposed in No. 05-cr-00059-RBJ-1 and properly were asserted in an
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. The April 13
order also directed the clerk of the Court to commence a new civil action and file the
document titled “Petition for Writ of Habeas Corpus” in the new civil action. See No. 95cr-00059-REB-1 at ECF No. 58.
Pursuant to the order entered in No. 05-cr-00059-RBJ-1, the clerk of the Court
opened the instant action on April 13 with the document titled “Petition for Writ of
Habeas Corpus” (ECF No. 1). Mr. Cooley cured deficiencies in the instant action by
paying on May 4, 2012, the $5.00 filing fee and by submitting on May 7, 2012, an
amended application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (ECF
No. 8) on the proper, Court-approved form that named the proper Respondent, i.e. his
warden. In the amended application, Mr. Cooley asserts that the federal detainer has
prevented his release on bail in connection with his state sentence. Id. at 2.
Because Mr. Cooley’s amended application was premised on his federal
detainer, Magistrate Judge Boyd N. Boland on May 8, 2012, ordered (ECF No. 9) the
United States Attorney to file a preliminary response limited to addressing the
affirmative defense of exhaustion of administrative remedies if Respondent intended to
raise that defense in this action. On May 30, 2012, Magistrate Judge Boland entered a
minute order (ECF No. 10) for a preliminary response because the May 8 order was
never served on the United States Attorney.
On May 31, 2012, an Assistant United States Attorney filed a letter (ECF No. 12)
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informing the Court that the United States Attorney would not enter an appearance in
this case because Applicant was a state and not a federal prisoner, no claims were
asserted against a federal agency or employee, and Applicant’s custodian – the named
Respondent – was warden of the Colorado Territorial Correctional Facility. Therefore,
on June 1, 2012, Magistrate Judge Boland entered an order (ECF No. 13) directing
Respondent to file a preliminary response addressing the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies under
28 U.S.C. § 2254(b)(1)(A). On June 22, 2012, Respondent filed a preliminary response
(ECF No. 19).
What is clear from the May 31 and June 22 responses received from the federal
and state attorneys is that this lawsuit is premature. Mr. Cooley currently is serving
state sentences in the custody of his state warden, Rae Timme, who is the proper
Respondent in this action because, “[i]f the petitioner is currently in custody under a
state-court judgment, the petition must name as respondent the state officer who has
custody.” Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts (Section 2254 Rules); see also Rule 1(a) of the Section 2254 Rules
(making the Section 2254 Rules applicable to § 2241 applications). Mr. Cooley must
complete his state sentences before he is transferred to federal custody pursuant to the
federal detainer lodged against him, and once in federal custody, he may sue the
federal warden to have his federal sentence run concurrently with his state sentences.
Under different circumstances, informing Mr. Cooley he must wait until he is in
federal custody to raise the issues he raises here might cause concern. However, the
Court notes that when Mr. Cooley attacked his federal sentence through a motion to
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vacate pursuant to 28 U.S.C. § 2255 filed in No. 05-cr-00059-RBJ-1, the sentencing
judge, in denying his § 2255 motion as untimely, pointed out that his state sentences
are not concurrent with his federal sentence:
On October 6, 2006, Cooley appeared in state court
in Weld County, where he pleaded guilty and received a
sentence of 120 months in the Colorado Department of
Corrections (DOC), to run concurrently with a second state
sentence of forty-two months on convictions for aggravated
robbery and possession of a controlled substance. The
state sentences are not concurrent with the federal
sentence. Following the sentencing in Weld County, Cooley
was incarcerated in the DOC to begin serving his state
sentences.
In his section 2255 Motion, Cooley explains that his
guilty plea in federal court was premised on his
understandings, developed through discussion with his
court-appointed counsel, that he would begin serving his
federal sentence first and that, given the fact he would be in
federal custody, the Weld County court would very likely
order the state sentences to run concurrently with the federal
sentence. . . . Cooley’s goal in both federal and state plea
bargains was, if possible, to obtain concurrent sentences on
all federal and state charges. Despite this goal and his
understandings with counsel, neither Cooley nor his [federal
public defender] requested, in the plea agreement or at the
change of plea or sentencing hearings, a federal sentence
imposed to be concurrent with any sentence received on his
pending state charges.
No. 05-cr-00059-RBJ-1, ECF No. 29 at 2-3 (footnote 2 omitted).
The federal judge in Mr. Cooley’s criminal case clearly concluded that his state
and federal sentences were not concurrent, and explained that only his state sentences
were concurrent with each other. Mr. Cooley may challenge the service of his federal
sentence through the Bureau of Prisons’ administrative exhaustion process once he is
in federal custody. At this time, it not only is premature for Mr. Cooley to attempt to
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challenge the service of his federal sentence, but the Court lacks jurisdiction to entertain
such a challenge as Mr. Cooley’s custodian is not a federal warden. Therefore, the
application will be denied.
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
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 $455.00
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 the habeas corpus application (ECF No. 1) and the amended
application (ECF Nos. 8) are denied and the action is dismissed without prejudice for
lack of jurisdiction. It is
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

5th

day of

July

, 2012.

BY THE COURT:

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

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