Jackson v. Wilson

Filing 10

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/18/13. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01891-BNB
RODNEY WAYNE JACKSON,
Applicant,
v.
GARY WILSON, Denver County Under Sheriff,
Respondent.

ORDER OF DISMISSAL

Applicant, Rodney Wayne Jackson, initiated this action by filing pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1). On
July 29, 2013, he filed an Amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (ECF No. 4). Mr. Jackson claims that he is incarcerated illegally at
the Denver Detention Center pursuant to a parole hold placed by the State of Colorado
Board of Parole (“the parole board”) following his arrest in January 2013 on new
criminal charges. According to Mr. Jackson, the parole board twice has postponed a
parole revocation hearing and has refused to release the parole hold, which has
resulted in his continued confinement because he is unable to obtain bail on the new
charges due to the parole hold. Mr. Jackson specifically asserts one claim for relief in
the amended application in which he contends that his Eighth Amendment rights have
been violated.
On July 30, 2013, Magistrate Judge Boyd N. Boland ordered Respondent to file a

preliminary response limited to addressing the affirmative defenses of timeliness under
28 U.S.C. § 2244(d) and exhaustion of state remedies if Respondent intends to raise
either or both of those defenses in this action. Magistrate Judge Boland also directed
Respondent to advise the Court who the proper Respondent is and move for
substitution of party if Respondent is not the appropriate party to respond to Mr.
Jackson’s claim challenging the parole hold. On August 21, 2013, the Executive
Director of the Colorado Department of Corrections, through the Colorado Attorney
General, filed a Preliminary Response (ECF No. 9) arguing that this action should be
dismissed for failure to exhaust state remedies because Mr. Jackson has not presented
his Eighth Amendment claim to the Colorado state courts in a petition for writ of habeas
corpus or in any other state court proceeding. Respondent has filed “Respondent Gary
Wilson’s Joinder in Preliminary Response of the Executive Director of the Colorado
Department of Corrections to Application for Writ of Habeas Corpus” (ECF No. 8). Mr.
Jackson has not filed a reply to the Preliminary Response despite being given an
opportunity to do so.
The Court must construe the amended application liberally because Mr. Jackson
is not represented by an attorney. 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
be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the action for failure to exhaust state remedies.
Mr. Jackson may not challenge the allegedly illegal parole hold in federal court in
a habeas corpus action unless he has exhausted state court remedies. See Montez v.
McKinna, 208 F.3d 862, 866 (10th Cir. 2000). The exhaustion requirement is satisfied
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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 v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th
Cir. 1994).
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
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner
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, 36566 (1995) (per curiam).
Finally, “[t]he exhaustion requirement is not one to be overlooked lightly.”
Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner seeking
habeas corpus relief in federal court 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).
Mr. Jackson has failed to respond to the affirmative defense raised in this action
and he fails to demonstrate he has fairly presented his Eighth Amendment claim to any
state court. Therefore, the action will be dismissed for failure to exhaust state remedies.
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Furthermore, the Court 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 $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 habeas corpus application (ECF No. 1) and the amended
application (ECF No. 4) are denied and the action is dismissed without prejudice for
failure to exhaust state remedies. It is
FURTHER ORDERED that no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right.
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this

18th

day of

September

, 2013.

BY THE COURT:

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

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