O'Connor v. Trani

Filing 14

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/21/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03400-BNB
MICHAEL R. O’CONNOR,
Applicant,
v.
TRAVIS TRANI, Warden, Colorado State Penitentiary,
RICK RAEMISCH, Executive Director, CDOC, and
MARY CARLSON, Time/Release Operations, CDOC,
Respondents.

ORDER OF DISMISSAL

Applicant, Michael R. O’Connor, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) at the Colorado State Penitentiary in Cañon City,
Colorado. Mr. O’Connor has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241, ECF No. 1, challenging the computation of his prison
sentence by the DOC. On January 2, 2014, Magistrate Judge Boyd N. Boland ordered
Respondents to file a preliminary response limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court
remedies if Respondents intend to raise either or both of those defenses in this action.
On January 22, 2014, Respondents filed a Preliminary Response, ECF No. 12, arguing
that the action should be dismissed for failure to exhaust state court remedies. On
January 31, 2014, Mr. O’Connor filed a Reply, ECF No. 13.
The Court must construe the Application and Reply liberally because Mr.
O’Connor 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 act as 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 court remedies.
A prisoner must exhaust state court remedies before he may pursue his federal
constitutional claims in a habeas corpus action in this Court whether the action is
asserted pursuant to § 2241 or § 2254. See Montez v. McKinna, 208 F.3d 862, 866
(10th Cir. 2000). Therefore, the Court will proceed to consider whether Mr. O’Connor
has exhausted his state court remedies.
The exhaustion requirement is satisfied once the federal claims have been
presented fairly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989).
Fair presentation requires that the federal issues 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, “[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
court remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).
Respondents argue that Mr. O’Connor has not exhausted state court remedies
for his claims because he has not fairly presented his claims to the Colorado Supreme
Court (CSC). The parties agree that Mr. O’Connor has filed a habeas corpus petition in
the Crowley County District Court, Case No. 11CV27; but Respondents assert that Mr.
O’Connor did not submit his claims to the State’s highest appellate court in that case.
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Prelim. Resp., ECF No. 12, at 3. Respondents also assert that the Colo. App. .R. 21
petition Mr. O’Connor claims he filed with the CSC does not exhaust his state court
remedies because the CSC has discretion in a Rule 21 petition to decline to address the
merits of the petition. Id. at 3-4.
Attached to the Reply, Mr. O’Connor provides documentation that he did appeal
the denial of his state court action by the Crowley County District Court in Case No.
11CV27, and that he has petitioned the CSC for certiorari review. See Reply at 4-9.
Nonetheless, the CSC docket Mr. O’Connor attached to his Reply indicates that the
petition is pending in the CSC, and Mr. O’Connor does not assert otherwise.
The original proceeding Mr. O’Connor filed in the CSC pursuant to Rule 21 does
not satisfy the fair presentation requirement because, if a “claim has been presented [to
the state’s highest court] for the first and only time in a procedural context in which its
merits will not be considered unless there are special and important reasons therefor, . .
. [r]aising the claim in such a fashion does not, for the relevant purpose, constitute fair
presentation.” Castille v. Peoples, 489 U.S. 285, 351 (1989); see also Parkhurst v.
Shillinger, 128 F.3d 1366, 1369 (10th Cir. 1997) (state procedure that is discretionary
and limited in scope does not constitute fair presentation). The CSC, in its discretion,
may decline to address the merits of claims asserted in an original petition for an
extraordinary writ. See Colo App. R. 21; see also Rogers v. Best, 171 P.2d 769, 770
(Colo. 1946). Furthermore, relief under Rule 21 “shall be granted only when no other
adequate remedy, including relief available by appeal . . . , is available.” C.A.R.
21(a)(1). As a result, the denial of an original petition for an extraordinary writ by the
CSC does not indicate that the court has considered the merits of the argument. See
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Bell v. Simpson, 918 P.2d 1123, 1125 n.3 (Colo. 1996). The CSC’s denial of Mr.
O’Connor’s Rule 21 petition did not exhaust his state court remedies.
Furthermore, Mr. O’Connor’s action filed in Crowley County District Court, Case
No. 11CV27, is not exhausted. Though this Court has determined that an applicant is
not required to petition for certiorari review under Colo. App. R. 51.1 to exhaust his
claims, the Court defers consideration of Mr. O’Connor’s claims as a matter of comity.
See Huffman v. Pursue, Ltd., 420 U.S. 592, 603 (1975) (extending the Younger
abstention doctrine, Younger v. Harris, 401 U.S. 37 (1971), to civil proceedings). Like
an unexhausted federal habeas claim, a claim pending before a state court based only
on comity is so similar in nature to an unexhausted claim that this Court will treat the
Application as unexhausted.
For these reasons, the instant action will be dismissed for failure to exhaust state
court 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 Mr. O’Connor 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

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ORDERED that the Application, ECF No. 1, is denied and the action is dismissed
without prejudice for failure to exhaust state court remedies. It is
FURTHER ORDERED that no certificate of appealability will issue because Mr.
O’Connor 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.
DATED at Denver, Colorado, this

21st

day of

March

, 2014.

BY THE COURT:

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

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