Guarneros v. Wilson

Filing 15

ORDER of Dismissal. ORDERED that the Application is denied and the action dismissed without prejudice. No certificate of appealability shall issue. Leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 3/18/13. (sgrim)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-03352-BNB
MARTIN PHILLIP GUARNEROS
Applicant,
v.
GARY WILSON, and
JOHN W. SUTHERS, The Attorney General of the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant, Martin Phillip Guarneros, acting pro se, initiated this action by filing an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. At the time he
filed this action, Applicant was held at the Denver County Jail in Denver, Colorado. As
of January 4, 2013, Applicant no longer is incarcerated and now resides in Denver,
Colorado. See ECF No. 8.
On December 28, 2012, Magistrate Judge Boyd N. Boland ordered Respondents
to file a Pre-Answer Response to the Application and address the affirmative defenses
of timeliness and exhaustion of state court remedies. After receiving an extension of
time, Respondents filed a Pre-Answer Response on February 15, 2013. Although a
copy of the Response was sent to Applicant’s home address in Denver, Colorado, see
ECF No. 14, he did not reply to the Pre-Answer Response.
The Court must construe the Application liberally because Applicant 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.
Applicant asserts that at the time he filed the Application he had not been
sentenced. Application at 2. Applicant raises three claims but concedes he has not
raised these claims on direct appeal or in a postconviction proceeding in state court.
Applicant contends that he is not required to raise the claims in state court because the
claims are brought only under “exclusive federal jurisdiction.” Id. at 5. Applicant raises
three claims, including: (1) district attorney’s failure to disclose exculpatory facts; (2)
double jeopardy violation; and (3) ineffective assistance of counsel. Id. at 5-6.
A state prisoner must exhaust state court remedies before he may pursue a
federal constitutional claim in a habeas corpus action in federal court. See Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Also, “[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)). “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).
Because Applicant was sentenced on January 3, 2013, he could not have
exhausted his claims or completed a civil habeas action for a review on the merits in
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state court. It also does not appear that Applicant would have pursued his federal
claims in state court because he asserts in the Application that a review of federal
claims by the state court is not required. Furthermore, Respondents assert that
Applicant has two remedies in state court that are available to challenge his three
claims, including a direct appeal and a postconviction proceeding pursuant to Colo. R.
Crim. P. 35(c).
Because Applicant is required to exhaust his federal claims in state court before
initiating a federal habeas action in this Court, and he has remedies available in state
court to raise his federal claims, the Application will be denied and the action dismissed
for failure to exhaust.
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 Applicant 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 review.
It is

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FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has failed to show that jurists of reason would find it debatable that the district
court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85
(2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED March 18, 2013, at Denver, Colorado.
BY THE COURT:

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

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