RedWillow v. Zavislan
ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/1/13. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02040-BNB
DONA ZAVISLAN, Denver Women’s Correctional Facility,
ORDER OF DISMISSAL
Applicant, Joann RedWillow, has filed pro se an Amended Application (ECF No.
9) seeking habeas corpus relief pursuant to 28 U.S.C. § 2241. Ms. RedWillow
challenges the computation of her prison sentences, and she seeks to have 547 days of
presentence confinement credit applied to those sentences. On September 12, 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. On October 3, 2013, Respondent filed a Preliminary Response
(ECF No. 13) arguing that this action should be dismissed for failure to exhaust state
remedies because Ms. RedWillow has not presented her claim for presentence
confinement credit to any state court. Ms. RedWillow has not filed a reply to the
Preliminary Response despite the opportunity to do so.
The Court must construe the amended application liberally because Ms.
RedWillow 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
Ms. RedWillow may not challenge the computation of her sentence in federal
court in a habeas corpus action unless she has exhausted state court remedies. 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. 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 she has
exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th
Ms. RedWillow has failed to respond to the affirmative defense raised by
Respondent and failed to demonstrate she has fairly presented her sentence
computation claim to any state court. Therefore, the action will be dismissed for failure
to exhaust state remedies. 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
she 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 Amended Application (ECF No. 9) is 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 1st day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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