Robinson v. Valerie Estrada, et al

Filing 16

ORDER by Magistrate Judge Boyd N. Boland on 02/21/13. ORDERED that Respondent Estrada brief the collateral consequences issue as set forth above within twenty-one days of the date of this Order. It is FURTHER ORDERED that if Applicant desires he may respond to Respondent Estradas briefing within twenty-one days from the date Respondent Estrada submits a brief to this Court. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02659-BNB
JAMES M. ROBINSON,
Applicant,
vs.
VALERIE ESTRADA (Denver County Probation Officer), and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER

Applicant, James M. Robinson, acting pro se, initiated this action on October 9,
2012, by filing a Petition for Writ of Habeas Corpus, ECF No. 1. Magistrate Judge Boyd
N. Boland reviewed the Petition and entered an order on October 10, 2012, instructing
Applicant to submit his claims on a Court-approved form used in filing 28 U.S.C. § 2254
applications. Subsequently, on November 9, 2012, Applicant filed his claims on a
proper form, ECF No. 5, challenging his conviction for public indecency. Magistrate
Judge Boland instructed Respondents to file a Pre-Answer Response limited to
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 November 30, 2012, Respondent Attorney General filed a Pre-Answer
Response and stated the State of Colorado has no interest in this proceeding because
Applicant is not incarcerated at a state correctional facility and has not violated any

provision of the Colorado Criminal Code, Title 18 of the Colorado Revised Statutes.
Subsequently, the Denver City Attorney submitted a Pre-Answer Response on behalf of
Valerie Estrada, Applicant’s probation officer. Applicant filed a Reply on January 14,
2013.
Applicant asserts he was convicted of public indecency in a court trial on March
9, 2010, in Denver Municipal Case No. 09GS035934, and sentenced to 120 days of
suspended jail time and two years of probation. Application at 2. He further asserts
that his conviction and sentence were affirmed on direct appeal on March 28, 2011; his
petition for certiorari review was denied on September 12, 2011; and his petition for
rehearing was denied on October 6, 2011. Id. at 3. Applicant also states that he filed a
postconviction motion pursuant to Rule 235 of the Colorado Municipal Court Rules of
Procedure on January 4, 2012. As a result of the postconviction motion, Applicant’s
probation was reduced to one year for good behavior and the sobriety testing
requirement was removed. Pre-Answer Resp., ECF No. 14-4, Ex. D at 25-26.
Applicant further states he appealed the county court’s decision regarding his
postconviction motion on February 21, 2012, and the appeal is pending. Application at
4. Applicant asserts ten claims in this action, including:
(1) Failure to prove charges beyond a reasonable doubt;
(2) Alleged misconduct did not meet the definition of the
charged offense;
(3) Improper assignment to a sex offender treatment facility;
(4) Right of appeal abridged;
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(5) Sentence fully served;
(6) Improper rescinding of stay by county court;
(7) Section 14-61 of Denver Municipal Code is
unconstitutional;
(8) Section 1-13 of the Denver Municipal Code is
unconstitutional;
(9) Jail sentence is excessive and discriminatory; and
(10) No probable cause for summons and complaint.
Id. at 7-13.
As a preliminary matter, Respondent Estrada argues that Applicant may not
challenge his municipal conviction because he no longer is in custody and was not in
custody when he filed the § 2254 Application. In addition to Applicant’s overview of the
procedural history of his state court proceedings, the Court finds that along with his
postconviction motion Applicant petitioned the trial court for a stay of probation, which
the trial court denied on February 2, 2012, and ordered applicant to begin his one-year
modified probation, which included a psychosexual evaluation. Pre-Answer Resp., Ex.
D. Applicant appealed to the district court for a reinstatement of a stay of his probation,
which the district court denied on May 30, 2012. Id., ECF No. 14-5, Ex. E. On
November 15, 2012, twenty days of jail time was imposed and at the same time the
one-year probation was terminated and the case was closed. Id., ECF No. 14-8, Ex. H
at 2-3.

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Pursuant to § 2254(a), “a district court shall entertain an application for a writ of
habeas corpus in behalf of a person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in violation of the Constitution or laws of
Treaties of the United States.” An individual seeking habeas corpus relief must be in
custody under the challenged conviction or sentence at the time the application is filed.
Maleng v. Cook, 490 U.S. at 490-91 (citing Carafas v. LaVellee, 391 U.S. 234, 238
(1968)). Relief generally is unavailable through a writ of habeas corpus when an
applicant seeks to challenge a prior conviction for which the person no longer is in
custody. See Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001).
The custody requirement extends beyond physical custody to encompass severe
restraints on an individual’s liberty imposed because of the individual’s criminal
conviction, which are not shared by the public generally. See e.g. Hensley v. Municipal
Court, 411 U.S. 345, 351 (1973) (finding that convict released on his own recognizance
pending execution of his sentence is in custody because he is obligated to appear at
times and places ordered by the court) (emphasis added); Jones v. Cunningham, 371
U.S. 236, 240-43 (1963) (holding that parolee was in custody under his unexpired
sentence because his release from physical confinement was conditioned on his
reporting regularly to parole officer, remaining in a particular community, residence and
job, and refraining from certain activities); Olson v. Hart, 965 F.2d 940, 942-43 (10th Cir.
1992).

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Once the sentence imposed for a conviction has expired, however, “the collateral
consequences of that conviction are not themselves sufficient to render an individual ‘in
custody’ for the purposes of a habeas attack upon it.” Maleng, 490 U.S. at 492.
If a prisoner is released from custody while the petition is pending, the court's
jurisdiction depends upon the existence of “collateral consequences [of the challenged
conviction] adequate to meet Article III's injury-in-fact requirement.” Spencer v. Kemna,
523 U.S. 1, 14 (1998); see, e.g., Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)
(holding that the defendant's inability to engage in certain businesses, serve in particular
offices, vote, and serve as a juror due to his conviction defeated the mootness
challenge to his appeal).
Exhibit H, which is attached to the Pre-Answer Response, states that Applicant
was subject to supervised probation from February 2, 2012, until November 15, 2012.
The conditions of Applicant’s probation included: (1) No further violations; (2)
psychosexual evaluation; (3) notice of change of address; and (4) treatment as
recommended by probation officer. Ex. H. The Court finds that restraints placed on
Applicant’s liberty were sufficiently severe to constitute custody. Applicant, therefore,
was in custody at the time he filed this action.
Respondent Estrada and Applicant agree that Applicant now has completed his
sentence in Denver Municipal Case No. 09GS035934. See Pre-Answer Resp. a 3;
Reply at 4. Applicant, however, argues in an attempt to show collateral consequences
that state sex offender statutes provide harsher penalties when there are previous

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convictions for a similar offense and that it is difficult to obtain employment when an
individual has been convicted of a sexually related offense. Respondent Estrada has
not addressed the collateral consequences that Applicant has asserted. Respondent,
therefore, will be directed to brief whether Applicant’s alleged collateral consequences
are adequate to meet the Article III injury-in-fact requirement. Accordingly, it is
ORDERED that Respondent Estrada brief the collateral consequences issue as
set forth above within twenty-one days of the date of this Order. It is
FURTHER ORDERED that if Applicant desires he may respond to Respondent
Estrada’s briefing within twenty-one days from the date Respondent Estrada submits a
brief to this Court.
DATED February 21, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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