Wallin v. Miller et al

Filing 34

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01868-BNB
OLOYEA D. WALLIN, a.k.a. DONALD OLOYEA WALLIN, a.k.a. OLOYEA WALLIN,,
Applicant,
v.
MICHAEL MILLER, Warden of Crowley County Correctional Facility, and
JOHN SUTHERS, The Attorney General fo the State of Colorado,
Respondents.

ORDER OF DISMISSAL

Applicant is in the custody of the Colorado Department of Corrections at the
Crowley Correctional Facility in Olney Springs, Colorado. He has filed an Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 challenging his conviction in
Arapahoe District Court Case No. 03CR2296 for second degree assault, aggravated
auto theft, theft, and violent sentence enhancer. Applicant was found guilty of second
degree assault and violent sentence enhancer and was sentenced to fourteen years of
incarceration and three years mandatory parole.
Applicant asserts twenty-one claims in the Application. The parties agree that
Applicant’s action is timely under 28 U.S.C. § 2244(d) and he has a postconviction
motion pending in the Colorado Supreme Court.
On January 7, 2014, Magistrate Judge Boyd N. Boland entered an order denying
Applicant’s request to stay the Application pending his exhaustion of state remedies.
The January 7 Order also directed Applicant to show cause within thirty days why the
Application should not be dismissed as a mixed petition.
On February 25, 2014, Applicant filed a Response to the Show Cause Order,
ECF No. 33, in which he asks the Court to dismiss the Application without prejudice so

that he may exhaust his unexhausted claims in the state courts and return to federal
court once all of his claims are exhausted.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s
rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is
satisfied once the federal claim has been presented fairly to the state courts. See
Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the
federal issue be presented properly “to the highest state court, either by direct review of
the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.
“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). Even if
state remedies properly have been exhausted as to one or more of the claims
presented, a habeas corpus application is subject to dismissal as a mixed petition
unless state court remedies have been exhausted for all of the claims raised. See Rose
v. Lundy, 455 U.S. 509, 522 (1982); Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir.
1995).
The Application contains both exhausted and unexhausted claims. Applicant has
elected to voluntarily dismiss his Application so that he may exhaust state remedies for
all of his claims and then return to federal court. Applicant is reminded that the
one-year limitation period in 28 U.S.C. § 2244(d) will be applied to any new federal court
action that he files. Furthermore, the time during which a 28 U.S.C. § 2254 application
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is pending in this Court does not toll the one-year limitation period in § 2244(d). See
Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that “an application for federal
habeas corpus review is not an ‘application for State post-conviction or other collateral
review’ within the meaning of 28 U.S.C. § 2244(d)(2)” and “therefore did not toll the
limitation period during the pendency of [an applicant’s] first federal habeas petition”).
The fact that the instant action currently is timely under § 2244 does not mean that any
future § 2254 action filed by Applicant will be timely.
The Court also 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 $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 January 7, 2014 Order to Show Cause is discharged. It is
FURTHER ORDERED that the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 1) is DISMISSED WITHOUT PREJUDICE. It is
FURTHER ORDERED that in forma pauperis status on appeal is denied.
DATED at Denver, Colorado, this 4th day of

March , 2014.

BY THE COURT:
s/ Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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