Chavez v. Colorado Department of Corrections et al

Filing 12

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/19/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03485-BNB
RICKY E. CHAVEZ,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS,
DIVISION OF ADULT PAROLE,
AMY HEBRARD, and
JOE THISTLEWOOD,
Respondents.

ORDER OF DISMISSAL

Applicant, Ricky E. Chavez, currently is detained at the Denver County Jail in
Denver, Colorado. Applicant filed an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241. Applicant is proceeding pro se and has been granted leave to
proceed pursuant to 28 U.S.C. § 1915.
On December 26, 2013, Magistrate Judge Boyd N. Boland ordered Respondents
to file a Preliminary Response to the habeas corpus application and address the
affirmative defenses of timeliness and exhaustion of state court remedies. On January
16, 2014, pursuant to the Court’s directive, Respondents filed a Preliminary Response.
Applicant has not filed a Reply within the time allowed.
The Court must construe the Application liberally because Applicant 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. The action will be dismissed for the reasons
stated below.
Applicant asserts that while serving a mandatory parole sentence in Colorado he
was charged with a new crime and now is being held pursuant to a parole hold until he
either is sentenced for the new crime or the new case is dismissed. Applicant contends
his constitutional rights are being violated because he is denied his right to bail or bond
and the parole hold will continue past February 14, 2014, the mandatory discharge date
for the sentence he currently is serving. Application, ECF No. 1, at 2-3.
Respondents argue that the Application should be denied because Applicant has
failed to exhaust his state court remedies. Prelim. Resp., ECF No. 10, at 4.
Respondents attached a list of Applicant’s criminal and civil state cases that indicates
he has not filed a state court action either in his criminal case or by filing a civil habeas
action. Id., at ECF Nos. 10-1 and 10-3.
A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally required to
exhaust state remedies. Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (citing
Coleman v. Thompson, 501 U.S. 722, 731 (1991)). Like other habeas applicants, a §
2241 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

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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).
“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)).
Applicant has failed to respond to the affirmative defense raised in this action,
and he fails to demonstrate in the Application that he has fairly presented his claims to
any state court. Therefore, the action will be dismissed for failure to exhaust state
remedies.
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

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(1962). If Applicant 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
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED February 19, 2014, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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