Angle v. Zupan et al

Filing 26

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/26/14. No certificate of appealability shall issue, and 25 Motion to Rule on/or Submit 2255 Motion is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03424-BNB
CHAD ANGLE,
Applicant,
v.
DAVID ZUPAN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Chad Angle, is in the custody of the Colorado Department of
Corrections (DOC) at the San Carlos Correctional Facility in Pueblo, Colorado. Mr.
Angle initiated this action by filing a Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255, ECF No. 1. Magistrate Judge Boyd N. Boland reviewed
Mr. Angle’s claims; determined that he was challenging a State of Colorado criminal
proceeding, Case No. 12CR5032; and directed him to submit his claims on a form used
in filing a 28 U.S.C. § 2254 action, which Mr. Angle did on December 23, 2013. Mr.
Angle also paid the $5 filing fee on December 27, 2013.
Subsequently, on December 30, 2013, Magistrate Judge Boyd N. Boland ordered
Respondents, State Attorney General of the State of Colorado and David Zupan, to file
a Pre-Answer Response and address the affirmative defenses of timeliness and
exhaustion of state court remedies. Respondents filed a Response on January 29,
2014, and Mr. Angle filed a Reply on February 6, 2014.

The Court must construe Mr. Angle’s Application and Reply liberally because he
is a pro se litigant. 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 a pro se
litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the
action will be dismissed.
First, Mr. Angle insists that the Court address the 28 U.S.C. § 2255 motion and
the 28 U.S.C. § 2254 application separately. Mr. Angle states that he intends for each
filing to be “ruled upon by the legal doctrines governing each of those codified sections
of law and the merit of the individual claims contained within each filing.” Reply at 1.
The § 2255 motion and the § 2254 application raise issues that relate to Mr. Angle’s
State of Colorado Criminal Case No. 12CR5032. Mr. Angle is not challenging a
sentence of a court established by an Act of Congress, see 28 U.S.C. § 2255(a), and he
is not in federal custody. Mr. Angle’s claims may not be brought under § 2255.
Respondents concede that the action is timely but argue that Applicant’s claims
are unexhausted. Mr. Angle’s arguments for waiving the exhaustion requirement are
unavailing.
After Respondents filed the Pre-Answer Response the Court was able to
determine that Mr. Angle originally was convicted on January 28, 2013, in Case No.
12CR5032. He was sentenced to two years of intensive supervision probation. His
probation was revoked on May 24, 2013, resulting in a six-year sentence in the DOC.
Mr. Angle states in the § 2255 Motion and the § 2254 Application that he is challenging
the results of the probation revocation hearing and the resulting six-year sentence.

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Mr. Angle is required to exhaust state remedies before he may pursue his federal
constitutional claims in a habeas corpus action. See 28 U.S.C. § 2254(b)(1); Montez v.
McKenna, 208 F.3d 862, 866 (10th Cir. 2000) (citing Coleman v. Thompson, 501 U.S.
722, 731 (1991). A habeas applicant fulfills the requirement to exhaust state remedies
once the issue has been “fairly presented to the state courts.” Picard v. Connor, 404
U.S. 270, 275 (1971); Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). This
requirement “is satisfied if the federal issue has been properly presented to the highest
state court.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994).
“The exhaustion requirement is not one to be overlooked lightly.” Hernandez v.
Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal
habeas corpus action 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).
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, 404 U.S. at 278; see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.
1989). Although fair presentation does not require a habeas corpus applicant 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, 365-66
(1995) (per curiam).

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“A state prisoner is generally barred from obtaining federal habeas relief unless
the prisoner has properly presented his . . . claims through one ‘complete round of the
State’s established appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92
(2006) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
Mr. Angle argues that exhaustion should be waived because
his initial public defender prevented him from exhausting state court
remedies and the conditions of his confinement prevent him from
accessing the legal resources he needs to exhaust. Mr. Angle further
argues that the state court’s conduct induced special circumstance
conditions that circumvent normal or typical avenues of due process.
Application, ECF No. 6, at 5. In the Reply, Applicant further asserts that
state remedies would be unuseable and/or ineffective at addressing the
serious claims and because a constitutional claim was filed (14th
amended Due Process) this automatically invokes supplemental
jurisdiction of the Federal Court and circumvents the exhaustion
requirement rendering it’s remedies for less serious procedural claims
moot.
Reply at 3. Mr. Angle also asserts that his “pre-conviction, court-appointed counsel”
has ignored him, and he has made several attempts on his own, plus three documented
attempts through an agent, to file an appeal through his pre-conviction, court-assigned
counsel. Id. Mr. Angle further asserts that his documents were stolen; he was attacked
by staff; and he was forcibly medicated, which impaired his ability to address his legal
affairs. Finally, Mr. Angle claims that the state remedy suggested by Respondents does
not ”adequately address [his] constitutional and civil rights claim of due process which a
federal court is more ideally suited legally to adjudicate.” Id. at 5.
The Court may excuse exhaustion in a § 2254 action if there is an “absence of
available State corrective process,” § 2254(b)(1)(B)(i), or “circumstances exist that
render such process ineffective to protect the rights of the applicant,” id. at (ii). Mr.
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Angle bears the burden of proving that exhaustion is futile. See Clonce v. Presley, 640
F.2d 271, 273 (10th Cir. 1981).
Respondents state that Mr. Angle has a remedy available under Colo. R. Crim.
P. 35(c). Furthermore, since the middle of December 2013, Mr. Angle has been able to
submit pleadings to this Court challenging his state conviction. Mr. Angle does not state
that he has attempted to submit a postconviction motion in state court but was
precluded from doing so. Because Mr. Angle is able to process court filings here, and
does not assert that state courts have denied him the ability to file a Rule 35(c), the
Court finds that there is an available corrective process that protects his rights.
Exhaustion of Mr. Angle’s state court remedies, therefore, is not futile, and dismissal for
failure to exhaust those remedies is appropriate.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not 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. Angle files a notice of appeal he must also 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 Application is denied and the action dismissed without
prejudice for failure to exhaust state court remedies before seeking federal court
intervention. It is

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FURTHER ORDERED that no certificate of appealability shall issue because Mr.
Angle has not made a substantial showing that jurists of reason would find it debatable
whether the procedural ruling is correct and whether the underlying claim has
constitutional merit. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is
FURTHER ORDERED that the “Motion to Rule on/or Submit 2255 Motion,” ECF
No. 25, is denied as moot.
DATED March 26, 2014, at Denver, Colorado.
BY THE COURT:

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

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