Ovigian v. Davis

Filing 11

ORDER Of Dismissal. The habeas corpus application (ECF No. 1 ) is denied and the action dismissed without prejudice. Leave to proceed in forma pauperis on appeal is denied. Any pending motions are denied as moot. By Judge Lewis T. Babcock on 7/1/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00167-BNB
ROBERT OVIGIAN,
Applicant,
v.
JOHN DAVIS, Warden, Buena Vista Correctional Facility,
Respondent.

ORDER OF DISMISSAL

Applicant, Robert Ovigian, is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the correctional
facility in Buena Vista, Colorado. He initiated this action by filing pro se on January 21,
2014, an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No.
1) challenging the suspension of his parole. He has paid the $5.00 filing fee.
On February 4, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF
No. 7) directing Respondent to file a preliminary 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) if Respondent intended to raise either
or both of those defenses in this action.
On February 25, 2014, Respondent filed a preliminary response (ECF No. 10).
Mr. Ovigian has not filed a reply to the preliminary response, although he was afforded
the opportunity to do so.
The Court must construe liberally the filings of Mr. Ovigian 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 Court will deny the habeas corpus application, and dismiss the action.
In the habeas corpus application, Mr. Ovigian alleges that his parole was
“revoked on July 25, 2013, due to a charge of petty theft under $500.00 and careless
driving.” ECF No. 1 at 2. The parole complaint attached to the preliminary response
indicates that Mr. Ovigian was arrested on new charges and placed on a parole hold on
July 25, 2013, for a theft charge of less than $500.00 in Westminster, Colorado, on June
10, 2013, and a careless driving charge and lane usage violation in Boulder County,
Colorado, on May 14, 2013. ECF No. 10 at 2, ex. A (parole complaint) at 1. On August
21, 2013, Mr. Ovigian’s parole was revoked for 180 days, during which Mr. Ovigian was
to remain report free and program compliant. ECF No. 10 at 2, ex. B (parole board
mittimus) at 1. Mr. Ovigian was returned to the DOC at the Buena Vista Correctional
Complex (BVCC).
While at the BVCC, Mr. Ovigian was convicted of two Code of Penal Discipline
violations for disobeying a lawful order, a Class II, Rule 25 violation. See ECF No. 1 at
5-6 (DOC notices of charges). As a result of the two charges, the Colorado Board of
Parole on December 24, 2013, rescinded Mr. Ovigian’s re-parole, and the period of
revocation was extended an additional 150 days from November 20, 2013. See ECF
No. 10 at 2, ex. C (Colorado Board of Parole Rescission Hearing) at 1.
Mr. Ovigian asserts that the re-parole rescission was based on false pretenses
because the COPD convictions were based on disobeying orders that were not lawful.
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He claims he exhausted his administrative remedies by writing kites requesting appeal
forms to his case manager, and the kites were ignored. See ECF No. 1 at 7.
Mr. Ovigian also asserts a conditions-of-confinement claim concerning a threat of
retaliation and his safety, see ECF No. 1 at 7-8, that is inappropriately asserted in a
habeas corpus action. “The essence of habeas corpus is an attack by a person in
custody upon the legality of that custody, and . . . the traditional function of the writ is to
secure release from illegal custody.” See Preiser v. Rodriguez, 411 U.S. 475, 484
(1973); see also McIntosh v. United States Parole Comm’n, 115 F.3d 809, 811 (10th
Cir. 1997) (“Petitions under § 2241 are used to attack the execution of a sentence, . . .
[while] § 2254 habeas and § 2255 proceedings, . . . are used to collaterally attack the
validity of a conviction and sentence.”); Palma-Salazar v. Davis, 677 F.3d 1031, 1035
(10th Cir. 2012) (discussing distinction between habeas corpus claims pursuant to §
2241 and conditions of confinement claims raised in civil rights actions). “It is
well-settled that prisoners who wish to challenge only the conditions of their
confinement, as opposed to its fact or duration, must do so through civil rights lawsuits
filed pursuant to 42 U.S.C. § 1983 or Bivens [v. Six Unknown Named Agents, 403 U.S.
388 (1971),] . . . – not through federal habeas proceedings.” Standifer v. Ledezma, 653
F.3d 1276, 1280 (10th Cir. 2011).
Mr. Ovigian may pursue his habeas corpus claim in the instant action. If he
intends to assert a civil rights claim challenging the conditions of his confinement, he
must file a separate civil rights action pursuant to § 1983.
Judicial review of the execution of a sentence is governed by § 2241.
Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). A federal court may only
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grant habeas corpus relief when a state prisoner is “in custody in violation of the
constitution, laws, or treaties of the United States.” 28 U.S.C. § 2241(c). Federal courts
do not possess supervisory authority over state judicial proceedings; they may only
intervene to correct violations of federal law. See, e.g., Smith v. Phillips, 455 U.S. 209,
221 (1982). Review of habeas corpus actions under § 2241 is governed by 28 U.S.C. §
2243, which vests the Court with the authority to decide the case as a matter of law.
See 28 U.S.C. § 2243; Watts v. Hadden, 489 F. Supp. 987, 989 (D. Colo. 1980), aff’d,
651 F.2d 1354 (10th Cir. 1981).
“A habeas petitioner is generally required to exhaust state remedies whether his
action is brought under § 2241 or § 2254.” Montez v. McKinna, 208 F.3d 862, 866 (10th
Cir. 2000). In Picard v. Connor, 404 U.S. 270, 275-76 (1971), the Supreme Court
noted:
We emphasize that the federal claim must be fairly
presented to the state courts. If the exhaustion doctrine is to
prevent unnecessary conflict between courts equally bound
to guard and protect rights secured by the Constitution, it is
not sufficient merely that the federal habeas applicant has
been through the state courts. The rule would serve no
purpose if it could be satisfied by raising one claim in the
state courts and another in the federal courts. Only if the
state courts have had the first opportunity to hear the claim
sought to be vindicated in a federal habeas proceeding does
it make sense to speak of the exhaustion of state remedies.
Accordingly, we have required a state prisoner to present the
state courts with the same claim he urges upon the federal
courts.
Id. (internal citation and quotation marks omitted). “The exhaustion requirement is not
one to be overlooked lightly. Principles of comity and federalism demand that the
requirement be ‘strictly enforced.’” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th

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Cir. 1995).
Mr. Ovigian is required to exhaust state remedies before he may raise his claims
in federal court. See Montez, 208 F.3d at 866. 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 (1989). Fair presentation requires that the
federal issue be presented properly “to the highest state court, either by direct review of
the conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36
F.3d 1531, 1534 (10th Cir. 1994). “An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State . . . if he has the right under
the law of the State to raise, by any available procedure, the question presented.” 28
U.S.C. § 2254(c). A state prisoner bringing a federal habeas corpus 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).
Mr. Ovigian has failed to exhaust state remedies. He has not filed a state court
proceeding in his criminal case, see ECF No. 10, ex. E (state court register in People v.
Ovigian, Larimer County District Court Case No. 07CR844, in which he was convicted
on theft charges), nor has he filed a civil habeas corpus action in state court. See ECF
No. 10, ex. D (state court list of all Mr. Ovigian’s state criminal and civil cases).
According to Mr. Ovigian’s habeas corpus application, this federal court case is based
on the two COPD convictions, DOC Case Nos. 140609 and 140698. ECF No. 1 at 5-6.
The two COPD hearings took place, and the Disposition of Charges was issued on
November 20, 2013 in No. 140609 (ECF No. 10, ex. F at 1), and on December 10, 2013
in No. 140698 (id. at 2). Mr. Ovigian could have appealed the disposition of the
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disciplinary charges if he disagreed with the COPD convictions. Similarly, if he
disagreed with the parole revocation or rescission, he could have filed a petition in his
criminal case pursuant to Rule 35(c)(2)(VII) of the Colorado Rules of Criminal
Procedure or a habeas corpus proceeding in state court. Therefore, Mr. Ovigian has
not adequately presented his claim to the state courts, he has failed to exhaust his state
court remedies, and the instant action will be dismissed.
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. Ovigian 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. P. 24.
Accordingly, it is
ORDERED that the habeas corpus application (ECF No. 1) is denied and the
action dismissed without prejudice for failure to exhaust state remedies. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. It is

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FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

1st day of

July

, 2014.

BY THE COURT:

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

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