Gomez v. Macgrew, et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 7/25/14. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02979-BNB
LINDA MACGREW, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER OF DISMISSAL
Applicant, Gonzalo Gomez, is a prisoner in the custody of the Federal Bureau of
Prisons who currently is incarcerated at the United States Penitentiary at Victorville in
Adelanto, California. Mr. Gomez has filed pro se an amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 10) and a supporting brief titled
“Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2254” (ECF No.
12) challenging the validity of his state court convictions in Larimer County District Court
case numbers 89-CR-0628 and 90-CR-0324. He has paid the $5.00 filing fee.
On February 4, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 15) directing Respondents to file a pre-answer response limited to addressing the
affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state
court remedies under 28 U.S.C. § 2254(b)(1)(A). On February 21, 2014, Respondents
filed a pre-answer response (ECF No. 21) arguing that the Court lacks jurisdiction
because Mr. Gomez is not in custody and that the claims in the Application are both
untimely and procedurally barred. On March 24, 2014, Mr. Gomez filed a reply (ECF
No. 23) to the pre-answer response.
The Court must construe the habeas corpus application and other papers filed by
Mr. Gomez liberally because he 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 amended application will be
denied and the action will be dismissed for lack of jurisdiction.
Mr. Gomez contends he is challenging two Larimer County, Colorado, district
convictions for: (1) attempt to commit a sale of a controlled substance in Case No.
90CR0324, for which he alleges he received a suspended four-year sentence to the
Colorado Department of Corrections; and (2) attempted possession of a controlled
substance in No. 89CR0628, for which he alleges he received a ninety-day jail
sentence. See ECF Nos. 10 at 2, 12 at 3-4. In the amended habeas corpus
application, he concedes these conviction and sentences are expired. See ECF No. 10
at 9. Respondents agree. See ECF No. 21 at 5, ex. C.
In the amended application, Mr. Gomez does not contend he still is serving the
sentences imposed as a result of his Larimer County convictions. Nor does he contend
that the Larimer County convictions were used to enhance the unrelated federal
sentence he is serving in California. Rather, he asserts a claim that counsel in each of
his Larimer County proceedings was ineffective for misadvising him that his guilty pleas
would have no immigration consequences, and asks this Court to vacate his expired
state convictions. Only in the reply does Mr. Gomez contend his prior convictions are
being used to enhance his current sentence in an unrelated federal case.
As noted above, Respondents first argue that the Court lacks jurisdiction over
this action because Mr. Gomez is not in custody for the purposes of the convictions he
is challenging. The Court agrees.
The Court has jurisdiction to entertain an application for habeas relief pursuant to
28 U.S.C. § 2254 only from an applicant who is “in custody pursuant to the judgment of
a State court.” 28 U.S.C. § 2254(a). “The custody requirement of the habeas corpus
statute is designed to preserve the writ of habeas corpus as a remedy for severe
restraints on individual liberty.” Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).
Furthermore, the custody requirement is jurisdictional. See McCormick v. Kline, 572
F.3d 841, 848 (10th Cir. 2009). Thus, a prisoner seeking habeas corpus relief must be
in custody pursuant to the conviction or sentence under attack at the time the habeas
corpus application is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Finally,
it is Mr. Gomez’s burden to establish that the custody requirement is satisfied. See
United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (stating that a defendant
filing a motion under 28 U.S.C. § 2255 bears the burden of demonstrating jurisdiction by
affirmatively alleging he is in custody).
The parties do not dispute the fact that Mr. Gomez has completely discharged his
state sentences. However, Mr. Gomez contends in the reply that he satisfies the
custody requirement because his Larimer County convictions were used to enhance the
unrelated federal sentence he currently is serving in California.
Mr. Gomez’s argument that he is in custody with respect to his Larimer County
convictions because those convictions were used to enhance the federal sentence he
currently is serving lacks merit. See Maleng, 490 U.S. at 491 (“In this case, the Court of
Appeals held that a habeas petitioner may be ‘in custody’ under a conviction whose
sentence has fully expired at the time his petition is filed, simply because that conviction
has been used to enhance the length of a current or future sentence imposed for a
subsequent conviction. We think that this interpretation stretches the language ‘in
custody’ too far.”); Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001).
For these reasons, the Court finds that Mr. Gomez fails to satisfy his burden of
demonstrating he is in custody with respect to his Larimer County convictions. As a
result, the action must be dismissed for lack of jurisdiction.
The Court recognizes that Mr. Gomez could satisfy the “in custody” requirement
if the application were construed as challenging the validity of his federal conviction
because he alleges he still is serving the sentence imposed in that case. See
Lackawanna, 532 U.S. at 401-02. However, Mr. Gomez would have to attack the
federal conviction, not the Larimer County convictions. There is no indication in the
application that Mr. Gomez seeks to challenge the validity of his federal conviction in
this action. In any event, this Court would lack jurisdiction over an attack on Mr.
Gomez’s federal conviction because he was not convicted or sentenced in this Court.
See 28 U.S.C. § 2255(a); see also Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996
(a § 2255 petition attacks the legality of detention, and must be filed in the district that
imposed the sentence). Therefore, the application must be dismissed for lack of
The Court will not address the affirmative defenses raised by the Colorado
Respondents in the pre-answer response because the action will be dismissed for lack
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 $505.00
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.
Accordingly, it is
ORDERED that the amended Application for Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2254 (ECF No. 10) is denied and the action is dismissed without prejudice
for lack of jurisdiction because Applicant, Gonzolo Gomez, is not in custody for the
purposes of the convictions under attack. 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. It is
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. It is
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this 25th
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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