Robledo v. Colorado Dept. of Corrections, The et al

Filing 43

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/11/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02084-BNB
CRAIG ROBLEDO,
Applicant,
v.
BRENDAN SCHAEFFER, and
JOHN DAVIS,
Respondents.

ORDER OF DISMISSAL

Applicant, Craig Robledo, 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) while he was
confined at the Bexar County Jail in San Antonio, Texas. Mr. Robledo alleged in the
original application that he was being held in Texas pursuant to a parole hold from the
State of Colorado. On September 18, 2013, Mr. Robledo filed a notice of change of
address and advised the Court that his parole had been revoked and that he was
incarcerated in Colorado. (See ECF No. 16.) On October 2, 2013, Magistrate Judge
Boyd N. Boland ordered Mr. Robledo to file an amended application that names a
proper Respondent and that clarifies the claims he is asserting in this action. On
October 17, 2013, Mr. Robledo filed an amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 21). On November 26, 2013, Mr.
Robledo filed a Notice of Change of Address (ECF No. 27) and advised the Court that
he was released on parole on November 8, 2013. According to his most recent Notice

of Change of Address (see ECF No. 41), Mr. Robledo’s parole again was revoked
following a hearing on January 17, 2014, and he currently is incarcerated in the custody
of the Colorado Department of Corrections.
On October 21, 2013, Magistrate Judge Boyd N. Boland ordered Respondents to
file a preliminary response limited to addressing whether any of Mr. Robledo’s claims
are moot and the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and
exhaustion of state remedies if Respondents intend to raise either or both of those
defenses in this action. On November 8, 2013, Respondents filed a Preliminary
Response (ECF No. 26) arguing that this action should be dismissed for failure to
exhaust state remedies. Respondents did not address in the Preliminary Response
whether any of Mr. Robledo’s claims are moot.
On December 6, 2013, Magistrate Judge Boland ordered Respondents to file a
supplement to the Preliminary Response that addresses whether Applicant’s claims in
the amended application were moot in light of his release on parole on November 8,
2013. On December 11, 2013, Respondents filed a Supplement to Preliminary
Response (ECF No. 29) arguing that Mr. Robledo’s claims are moot to the extent he
seeks to be released from incarceration. On January 9, 2014, Magistrate Judge Boland
entered a minute order extending the time for Mr. Robledo to file a reply to the
Supplement to Preliminary Response until January 31, 2014. On February 5, 2014, Mr.
Robledo filed a document titled “Memorandum of Supplement to Response” (ECF No.
42) as his response to the Supplement to Preliminary Response.
The Court must construe the amended application and other papers filed by Mr.
Robledo liberally because he is not represented by an attorney. See Haines v. Kerner,
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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.
Mr. Robledo asserts four claims in the amended application. He first claims that
he was denied due process in connection with a Colorado parole board decision
denying him release on parole in September 2012. In his second claim Mr. Robledo
challenges the mandatory parole portion of his Colorado sentence, which led to his
placement on parole at the conclusion of his prison sentence in January 2013. Mr.
Robledo contends in his third claim that his incarceration in Texas and Colorado after
July 22, 2013, violates double jeopardy because he had finished his sentence by that
time. Finally, in his fourth claim Mr. Robledo challenges his extradition from Texas to
Colorado in August 2013. Mr. Robledo also makes a vague and conclusory allegation
within his fourth claim that there was no evidence to support revocation of his parole on
September 6, 2013. As relief in the amended application Mr. Robledo seeks immediate
release from prison and to be discharged from parole supervision. In addition to the
four claims in the amended application, Mr. Robledo states in the “Memorandum of
Supplement to Response” that “I now seek leave to supplement this claim/action, now
that the CDOC has given me another sham hearing on 01/17/14 and placed me back in
prison in the same manner.” (ECF No. 42 at 2.) Mr. Robledo has not filed a proper
motion to amend, and he has not submitted an amended pleading that provides specific
factual allegations in support of the new claim he seeks to raise. Nevertheless, the
Court will consider the claim.
As noted above, Respondents argue that Mr. Robledo’s claims in the amended
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application are moot in part. Under Article III of the Constitution, federal courts may
only adjudicate live controversies. See Alvarez v. Smith, 558 U.S. 87, 92 (2009); see
also McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (“Mootness
is a threshold issue because the existence of a live case or controversy is a
constitutional prerequisite to federal court jurisdiction.”). Furthermore, an “actual
controversy must be extant at all stages of review, not merely at the time the complaint
is filed.” Alvarez, 558 U.S. at 92 (internal quotation marks omitted).
A case becomes moot if an event occurs during the pendency of the action that
“makes it impossible for the court to grant any effectual relief whatever to a prevailing
party.” Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation
marks omitted); see also Kan. Judicial Review v. Stout, 562 F.3d 1240, 1245 (10th Cir.
2009) (“If, during the pendency of the case, circumstances change such that the
plaintiff’s legally cognizable interest in a case is extinguished, the case is moot, and
dismissal may be required.”) “It has long been settled that a federal court has no
authority to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.”
Church of Scientology, 506 U.S. at 12 (internal quotation marks omitted).
It is clear that Mr. Robledo’s claims challenging parole board proceedings that
resulted in the denial of release on parole in September 2012 and the revocation of his
parole in September 2013 are moot. Once Mr. Robledo was released on parole in
January 2013, he no longer had a redressable injury arising from the denial of his parole
application in September 2012. See Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th
Cir. 1986) (per curiam) (dismissing appeal as moot because the petition challenged only
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determinations that delayed defendant’s parole date and he already had been released
on parole). As a result, “the best this court could do for him would be to declare [in an
advisory opinion] that he spent longer in prison than he should have,” which is not
enough to satisfy Article III. Rhodes v. Judiscak, 676 F.3d 931, 935 (10th Cir. 2012); see
also Spencer v. Kemna, 523 U.S. 1, 18 (1998) (stating that the federal courts “are not in
the business of pronouncing that past actions which have no demonstrable continuing
effect were right or wrong.”). Similarly, once Mr. Robledo was released on parole in
November 2013, he no longer had a redressable injury arising from the revocation of his
parole in September 2013.
Applicant could avoid dismissal of his claims challenging these parole board
proceedings as moot by establishing the existence of continuing collateral
consequences as a result of the denial of his release on parole in September 2012 and
the revocation of parole in September 2013. See Spencer, 523 U.S. at 7-8. However,
Mr. Robledo does not demonstrate any collateral consequences resulting from either
parole decision that would overcome a finding of mootness and no such collateral
consequences are apparent. The fact that Mr. Robledo’s parole was revoked again
following a separate and distinct hearing on January 17, 2014, does not alter the Court’s
conclusion that his claims challenging parole board actions in September 2012 and
September 2013 are moot. Therefore, Mr. Robledo fails to present a case or
controversy for purposes of Article III with respect to the September 2012 and
September 2013 parole board actions, and his claims challenging those actions will be
dismissed for lack of subject matter jurisdiction.
The Court next will address Mr. Robledo’s second claim for relief that challenges
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the mandatory parole portion of his sentence. Mr. Robledo’s claim challenging the
validity of the mandatory parole portion of his sentence may not be raised in this habeas
corpus action pursuant to § 2241 because that claim challenges the validity of a state
court sentence and must be raised in a habeas corpus action pursuant to 28 U.S.C. §
2254. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). The Court notes
that Mr. Robledo has filed in the District of Colorado two habeas corpus actions
pursuant to § 2254 challenging the validity of his Colorado convictions and sentences.
See Robledo-Valdez v. United States, No. 13-cv-02558-BNB (D. Colo. filed Sept. 18,
2013) (challenging Park County convictions); Robledo v. Jones, No. 11-cv-02130-LTB
(D. Colo. Nov. 28, 2011) (challenging Jefferson County conviction), certificate of
appealability denied and appeal dismissed, 464 F. App’x 773 (10th Cir.), cert. denied,
133 S. Ct. 342 (2012). The Court will not consider in this action the merits of Mr.
Robledo’s second claim for relief challenging the validity of the mandatory parole portion
of his sentence because he is challenging the validity of his Colorado convictions and
sentences in separate habeas corpus actions pursuant to § 2254. Instead, the second
claim will be dismissed without prejudice.
Finally, the Court will address Mr. Robledo’s double jeopardy claim and his claim
challenging his extradition from Texas to Colorado. Because it is not clear whether
these claims are moot, the Court will consider Respondents’ argument that the claims
should be dismissed for failure to exhaust state court remedies. The Court also will
consider whether Mr. Robledo has exhausted state court remedies for the new claim he
raises challenging his parole revocation in January 2014.
Mr. Robledo may not challenge the execution of his sentence in federal court in a
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habeas corpus action pursuant to 28 U.S.C. § 2241 unless he 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 he has exhausted
all available state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir.
1992).
Mr. Robledo fails to demonstrate he has exhausted state remedies with respect
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to his double jeopardy claim, his claim challenging his extradition from Texas to
Colorado, or his new claim challenging his parole revocation in January 2014. Even
assuming Mr. Robledo’s claim challenging his parole revocation in September 2013 was
not moot, he also fails to demonstrate he has exhausted state remedies with respect to
that claim. In fact, there is no indication or allegation that Mr. Robledo has made any
attempt to present any of these claims to the Colorado state courts. Therefore, those
claims will be dismissed without prejudice for failure to exhaust state remedies.
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 $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 habeas corpus application and the amended application are
denied and the action is dismissed without prejudice for the reasons stated in this order.
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.

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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

11th day of

February

, 2014.

BY THE COURT:

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

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