Arana v. Denver County Sheriff

Filing 7

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/28/13. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01841-BNB
LUIS RAUL ARANA,
Applicant,
v.
DENVER COUNTY SHERIFF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Luis Raul Arana, currently is detained at the Denver County Jail in
Denver, Colorado. Mr. Arana, acting pro se, initiated this action by filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Mr. Arana has been
granted leave to proceed pursuant to 28 U.S.C. § 1915.
On July 12, 2013, Magistrate Judge Boyd N. Boland ordered The Attorney
General for the State of Colorado to file a preliminary response to the habeas corpus
application and address the affirmative defenses of timeliness and exhaustion of state
court remedies. On July 26, 2013, The Attorney General filed a Response. Mr. Arana
did not file a Reply within the time allowed.
The Court must construe Mr. Arana’s Application liberally because he 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.
Mr. Arana asserts that he is awaiting trial on new charges and has been denied
release on bail pending his trial in violation of his constitutional rights.
The Attorney General asserts that Mr. Arana has not presented his parole hold
claim to any state court and, as a result, has failed to exhaust his state court remedies.
Specifically, The Attorney General states that according to the Colorado State Court
Data Access database Mr. Arana has not filed an action in which he challenged the
parole hold at issue in this case.
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
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.
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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).
“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)).
Based on the above findings, Mr. Arana remains in custody subject to a parole
hold that he has not challenged in any state court proceeding. He, therefore, has failed
to exhaust his state remedies prior to filing this habeas corpus action with this Court.
The Application 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 Mr. Arana 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
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ORDERED that the Application is denied and the action dismissed without
prejudice for failure to exhaust state court remedies before seeking federal court
intervention. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED August 28, 2013, at Denver, Colorado.
BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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