Brown v. Executive Director of Colorado Dept. of Corrections

Filing 13

ORDER dismissing this action without prejudice by Judge Lewis T. Babcock on 2/25/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03254-BNB
JOLEY B. BROWN,
Applicant,
v.
EXECUTIVE DIRECTOR OF COLORADO DEPARTMENT OF CORRECTIONS,
Respondent.

ORDER OF DISMISSAL

Applicant, Joley B. Brown, is in the custody of the Colorado Department of
Corrections at the Colorado Territorial Correctional Center. He filed an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241and paid the $5.00 filing fee.
On December 2, 2013, Magistrate Judge Boyd N. Boland entered an order
directing the Respondent to file a preliminary response to the Application to assert the
affirmative defense of exhaustion of state court remedies if the government intended to
raise the defense. Respondent filed a preliminary response on January 16, 2014,
asserting the exhaustion defense. Mr. Brown was afforded an opportunity to file a
Reply brief.
The Court must construe liberally Mr. Brown’s filings 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 § 2241 Application will be dismissed without prejudice.

I. Claims Alleged in Federal Application
Mr. Brown purports to assert two grounds for relief in his § 2241 Application.
In claim one, he contends that his right to due process was violated when his custody
was extended without any additional charges, hearings, or guilty findings that would
lengthen his sentence. (ECF No. 1, at 2-3) Applicant maintains that he was sentenced
to three years in custody, less time served, “with awards of credited time granted.” (Id.
at 3.) He argues that his time served in constructive custody on house arrest is not
reflected in any computation of his mandatory release date and, therefore, he is being
held beyond the scope of his original sentence. (Id. at 2.) Applicant urges that he
exhausted his state remedies for this claim when he petitioned the courts in El Paso and
Teller counties and was denied relief. (Id. at 3.)
In claim two, Mr. Brown asserts that his due process rights were violated when
prison officials denied his requests for the appointment of counsel despite his “Autism or
the Alternate Diagnosis of Mental Illness.” (Id. at 3.) Applicant maintains that he
exhausted his state remedies when he petitioned to numerous prison officials as well as
an assistant public defender in Colorado Springs, Colorado. (Id.)
II. Exhaustion of State Court Remedies
Respondent contends that this action must be dismissed because Mr. Brown
failed to exhaust his state court remedies before filing the federal Application.
A habeas petitioner is generally required to exhaust state remedies before filing a
federal application under 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. See Castille v. Peoples, 489 U.S. 346, 351
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(1989). “A state prisoner is generally barred from obtaining federal habeas relief unless
the prisoner has properly presented his or her claims through one ‘complete round of
the State’s established appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). “An exception is made only
if there is no opportunity to obtain redress in state court or if the corrective process is so
clearly deficient as to render futile any effort to obtain relief.” Beavers v. Saffle, 216 F.3d
918, 924 n.3 (10th Cir. 2000) (quotation omitted). A state prisoner bringing a federal
habeas corpus action bears the burden of showing that he exhausted all available state
remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992). An application
that contains unexhausted claims must be dismissed without prejudice. See Rose v.
Lundy, 455 U.S. 509, 510 (1982); Moore v. Schoeman, 288 F.3d 1231, 1232 (10th Cir.
2002).
The state court filing information submitted by Respondent reflects that Mr.
Brown filed a state habeas corpus action in the El Paso County District Court on
November 5, 2013. (ECF Nos. 12-2, 12-3, 12-4). On November 10, 2013, the state
district court entered an order summarily denying Applicant’s request for a writ of
habeas corpus. (ECF No. 12-5). Mr. Brown did not file an appeal of the district court’s
order. (ECF No. 12-1). There is nothing before the Court to indicate that Applicant
presented claim 1 of his federal Application to the state courts in any of his other
criminal cases. (See ECF No. 12-1). Consequently, he has failed to exhaust state
court remedies for his first claim.
Applicant’s second claim for relief, asserting that prison officials have failed to
appoint counsel to represent him, does not raise a federal issue cognizable in this §
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2241 proceeding. See 28 U.S.C. § 2241(c)(3) (“The writ of habeas corpus shall not
extend to a prisoner unless– (3) He is in custody in violation of the Constitution or laws
or treaties of the United States; . . . “). Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241, filed by Joley B. Brown on November 29, 2013, is DISMISSED
WITHOUT PREJUDICE. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
Dated: February 25, 2014
BY THE COURT:

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

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