Simmons v. Trani et al

Filing 33

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/4/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01273-BNB
LEO SIMMONS,
Applicant,
v.
TRAVIS TRANI, Warden, DRDC,
Respondent.

ORDER OF DISMISSAL

Applicant, Leo Simmons, is in the custody of the Colorado Department of
Corrections and is incarcerated at the Fremont Correctional Facility in Cañon City,
Colorado. Applicant initiated this action pro se by filing an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241. Applicant was granted leave to proceed
pursuant to 28 U.S.C. § 1915. On August 2, 2013, Magistrate Judge Boyd N. Boland
directed Applicant to file an Amended Application that complied with Fed. R. Civ. P. 8.
On September 3, 2013, Applicant filed an Amended Application. After review of
the Application, Magistrate Judge Boland found that it asserts, in part, conditions of
confinement claims. The only proper claim under § 2241 is that Applicant is being held
without a mittimus or a warrant of commitment. The Court has reviewed the Second
Amended Application filed on September 3, 2013. Applicant’s claims concerning
retaliation and fraudulent prison records challenge the conditions of his confinement and
are not properly raised in a § 2241 action. See Montez v. McKinna, 208 F.3d 862, 865

(10th Cir. 2000) (challenge to validity of conviction is purpose of a 28 U.S.C. § 2254
action and challenge to execution of a sentence is purpose of a 28 U.S.C. § 2241
action); see also Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. Aug. 10, 2011)
(“It is well-settled law that prisoners who wish to challenge only the conditions of their
confinement, as opposed to its fact or duration, must do so through civil rights lawsuits
filed pursuant to 42 U.S.C. § 1983 . . . .”). The Court agrees that the only proper claim
in this § 2241 action is the claim that Applicant is being held illegally without a mittimus
or warrant of commitment.
After a review of the Second Amended Application, Magistrate Judge Boland
directed Respondent to file a Preliminary Response limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies. On October 2, 2013, Respondents filed a Response. Applicant did not reply.
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. The action will be dismissed for the reasons
stated below.
Applicant asserts that he is being held without a mittimus or a warrant of
commitment. Sec. Am. Application, ECF No. 26, at 2. Applicant also states he has
been denied grievances and appeals by prison staff, but he has “alerted” the courts
about his claim. Id.
An applicant must exhaust state remedies before he may pursue his claims in a
habeas corpus action in this Court. See Wilson v. Jones, 430 F.3d 1113, 1118 (10th
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Cir. 2005). Like other habeas applicants, a § 2241 applicant fulfills the requirement to
exhaust state remedies once the issue has been “fairly presented to the state courts.”
Picard v. Connor, 404 U.S. 270, 275 (1971); Hawkins v. Mullin, 291 F.3d 658, 668 (10th
Cir. 2002). This requirement “is satisfied if the federal issue has been properly
presented to the highest state court.” Dever v. Kan. State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994). “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).
Furthermore, 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, 404 U.S. at 278; see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.
1989). Although fair presentation does not require a habeas corpus applicant 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,” 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).
Respondent asserts that Applicant’s parole was revoked on April 23, 2013, due
to a violation of the conditions of his parole, and he was remanded to prison for 180
days. Prelim. Resp., Ex. B, ECF No. 32-2. Applicant filed a habeas corpus petition on
May 16, 2013, challenging his unlawful restraint. Prelim. Resp., Ex. C, ECF No. 32-3, at
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2. The petition was denied on May 17, 2013, but Applicant did not file an appeal of the
denial. Id. Applicant does not assert otherwise.
“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)). Because Applicant
has not appealed the denial of his challenge to his alleged illegal incarceration he has
failed to complete exhaustion of the state appellate review process. The Application,
therefore, will be denied and the action dismissed for failure to exhaust state court
remedies prior to initiating the instant lawsuit.
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 $505 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 leave to proceed in forma pauperis on appeal is
denied.
DATED December 4, 2013, at Denver, Colorado.
BY THE COURT:

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

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