Haines v. Archuleta

Filing 8

ORDER Drawing Case 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-01897-BNB
CHRISTOPHER HINES,
Applicant,
v.
ARCHULETA,
Respondent.

ORDER DRAWING CASE

Applicant, Christopher Haines, is in the custody of the Colorado Department of
Corrections (CDOC) and is incarcerated at the Fremont Correctional Facility in Canón
City, Colorado. Mr. Haines has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. He has paid the $5.00 filing fee.
On July 18, 2013, the Court ordered Respondent to file a Preliminary Response
addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or
exhaustion of state court remedies. Respondent filed a Preliminary Response on
August 8, 2013. Applicant filed a Reply to the Preliminary Response on August 22,
2013.
The Court construes Applicant’s filings liberally because he is without counsel.
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, this action will be
drawn to a district judge and to a magistrate judge.

Mr. Haines is serving an indeterminate sentence of sixteen years to life for sexual
assault on a child. [Doc. # 6-4, at 2]. He claims in the Application that the CDOC has
not calculated his parole date correctly under applicable state statutes, in violation of his
Fourteenth Amendment due process and equal protection rights. [Doc. # 1, at
4-8]. Applicant further asserts an equal protection violation based on the fact that sex
offenders serving indeterminate sentences are required to participate in sex offender
treatment programs as part of their sentences, but sex offenders serving determinate
sentences are not, in contravention of a Colorado statute that mandates treatment for all
sex offenders incarcerated with the CDOC. [Id. at 4, 8-11]. Respondent contends in
the Preliminary Response that this action should be dismissed because Applicant failed
to exhaust state court remedies for his claims. [Doc. # 6, at 3-5].
A state prisoner generally is required to exhaust state court remedies prior to
seeking relief pursuant to 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 866
(10th Cir. 2000). The exhaustion requirement is satisfied once the federal claim has
been presented fairly to the state courts in 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)); see also 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. Kansas 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
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available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.1992).
The documents attached to the Preliminary Response reflect that Applicant filed
an action in state district court against the CDOC and the Colorado Parole Board on
October 3, 2011, raising essentially the same claims presented in his federal
Application. [Doc. # 6-1]. The defendants filed a motion to dismiss, which the state
district court granted on May 18, 2012. [Doc. # 6-2]. On appeal, the Colorado Court of
Appeals affirmed the district court’s order of dismissal. See Haines v. Executive
Director of the Colorado Department of Corrections, et al., No. 12CA1201 (Colo. App.
June 20, 2013) (unpublished). At the time the Preliminary Response was filed, Mr.
Haines had not filed a petition for rehearing in the Colorado Court of Appeals or a
petition for certiorari review in the Colorado Supreme Court. [Doc. # 6, at 2; # 6-5].
Respondent argues that Mr. Haines failed to exhaust state court remedies before
filing his federal Application because the Colorado Court of Appeals has not issued a
mandate and Applicant has not sought review of the Colorado Court of Appeals’
decision in the Colorado Supreme Court.
As an initial matter, Respondent does not cite any legal authority in support of his
contention that the exhaustion requirement for filing a habeas petition in federal court is
not satisfied until the Colorado Court of Appeals issues a mandate. In a separate but
related context, the Court of Appeals for the Tenth Circuit has rejected the date the
mandate issued as controlling the timeliness of a federal habeas application under the
one-year limitation period provided for in 28 U.S.C. § 2244(d). See, e.g., Barnett v.
Lemaster, 167 F.3d 1321, 1323 (10th Cir. 1999) (finding that post-conviction motion
tolled the one-year limitation period from the day it was filed until the state supreme
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court denied certiorari review); see also Serrano v. Williams, 383 F.3d 1181, 1185 (10th
Cir. 2004) (refusing to extend tolling period for post-conviction motion to the date the
mandate issued). Accordingly, the Court is not persuaded that the issuance of a
mandate by the Colorado Court of Appeals is necessary before a habeas petitioner can
demonstrate exhaustion of state court remedies.
The Court’s conclusion finds further support in Colorado Appellate Rule 51.1,
which provides:
In all appeals from criminal convictions or postconviction
relief matters from or after July 1, 1974, a litigant shall not be
required to petition for rehearing and certiorari following an
adverse decision of the Court of Appeals in order to be
deemed to have exhausted all available state remedies
respecting a claim of error. Rather, when a claim has been
presented to the Court of Appeals or Supreme Court, and
relief has been denied, the litigant shall be deemed to have
exhausted all available state remedies.
Colo. App. R. 51.1. The State of Colorado has not articulated that issuance of the
mandate is part of its standard appellate review process.
Moreover, pursuant to Colo. App. R. 51.1, review in the Colorado Supreme Court
is not required to exhaust state remedies if the claim in question was presented fairly to,
and relief was denied by, the Colorado Court of Appeals. See, e.g., Valenzuela v.
Medina, No. 10-cv-02681-BNB, 2011 WL 805787 (D. Colo. Feb. 28, 2011). This
interpretation of the state procedural rule is bolstered by four circuit court decisions
holding that state rules similar to Colo. App. R. 51.1 eliminate the need to seek review in
the state’s highest court in order to satisfy the exhaustion requirement. See Lambert v.
Blackwell, 387 F.3d 210, 233 (3d Cir. 2004); Adams v. Holland, 330 F.3d 398, 401-03
(6th Cir. 2003); Randolph v. Kemna, 276 F.3d 401, 404-05 (8th Cir. 2002); Swoopes v.
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Sublett, 196 F.3d 1008, 1009-10 (9th Cir. 1999).
The record establishes that Mr. Haines presented his federal constitutional
claims to the Colorado Court of Appeals which denied relief on the merits in a June 20,
2013 opinion. Therefore, the Court rejects Respondent’s affirmative defense and finds
that Applicant exhausted state remedies for his claims before he initiated this action on
July 17, 2013. Accordingly, it is
ORDERED that this case shall be drawn to a district judge and to a magistrate
judge. See D.C.COLO.LCivR 8.2D. It is
FURTHER ORDERED that Respondent show cause within twenty-one days
from the date of this Order why the Application should not be granted. It is further
ORDERED that within twenty-one days of Respondent’s answer to the show
cause order Applicant may file a reply. It is further
ORDERED that the Applicant shall remain in custody until further order.
DATED at Denver, Colorado, this 28th day of

August , 2013.

BY THE COURT:

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

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