Compito v. Falk et al
Filing
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ORDER discharging the Order to Show Cause, dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/17/14. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00422-GPG
EMMIT JAMES COMPITO,
Applicant,
v.
FRANCES FALK, and
JOHN SUTHERS, The Attorney General of the State of Colorado,
Respondent.
ORDER OF DISMISSAL
Applicant is in the custody of the Colorado Department of Corrections and is
incarcerated at the Limon Correctional Facility in Limon, Colorado. He filed an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that challenges
his conviction in El Paso County District Court Case No. 03CR2941 for first degree
burglary, multiple counts of aggravated robbery, one count of conspiracy to commit first
degree burglary and aggravated robbery, crime of violence, one count of menacing, one
count of theft, one count of false imprisonment, and three counts of contributing to the
delinquency of a minor. Applicant was sentenced on August 3, 2004, to a total of thirty
years of incarceration in the DOC.
Magistrate Judge Boyd N. Boland directed Applicant to amend the Application,
which he did on March 11, 2014. In the Amended Application, Applicant asserts seven
claims. Respondents then were ordered to file a Pre-Answer Response 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). Respondents filed a Pre-Answer
Response on April 29, 2014, and Applicant replied to the Response on May 29, 2014.
After a preliminary review of this case and a second 28 U.S.C. § 2254 case, Compito v.
Falk, et al., No. 14-00333-GPG (D. Colo. Filed February 14, 2014), that Applicant filed
in this Court challenging his state criminal conviction in Case No. 03CR2941, Magistrate
Judge Boland ordered the state court record in Case No. 03CR2941 to facilitate this
Court’s initial review in this case and in Case No. 14-cv-00333-GPG.
Then, upon review of the Response and Reply, the state court registry for
Criminal Case No. 03CR941, ECF No. 16-1, and also the state court files in Case No.
03CR2914, on October 7, 2014, Magistrate Judge Boland entered an order that found
the action is timely under 28 U.S.C. § 2244(d) and that Applicant has a postconviction
motion pending on appeal in state court. Magistrate Judge Boland directed Applicant to
show cause within thirty days why the Application should not be dismissed as a mixed
petition pursuant to Rose v. Lundy, 455 U.S. 509, 522 (1982), because the Application
contains both exhausted and unexhausted claims.
In the October 7, 2014 Order, Applicant was informed as follows. Pursuant to 28
U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted
unless it appears that the applicant has exhausted state remedies or that no adequate
state remedies are available or effective to protect the applicant’s rights. See O’Sullivan
v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531,
1534 (10th Cir. 1994). 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, 36 F.3d at 1534.
“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
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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). Even if
state remedies properly have been exhausted as to one or more of the claims
presented, a habeas corpus application is subject to dismissal as a mixed petition
unless state court remedies have been exhausted for all of the claims raised. See
Rose, 455 U.S. at 522; Harris v. Champion, 48 F.3d 1127, 1133 (10th Cir. 1995).
Applicant was told that to avoid dismissal of a habeas application as a mixed
petition, an applicant may elect to dismiss any unexhausted claims and pursue only
those claims for which state remedies already have been exhausted. Further, that if he
desired to pursue all of his claims in federal court the habeas action would be dismissed
without prejudice so that he may exhaust state remedies. He then would be able to file
a new application for a writ of habeas corpus once all of his claims are exhausted.
Applicant also was informed that a decision to dismiss unexhausted claims and
pursue immediately only exhausted claims likely will bar an applicant from seeking
review of the unexhausted claims in a second or successive application. See 28 U.S.C.
§ 2244(b). Alternatively, if an applicant elects to dismiss the entire action and return to
state court to exhaust the unexhausted claims before seeking relief in federal court, the
one-year limitation period in § 2244(d) will be applied to any new federal court action the
applicant seeks to file. Furthermore, the time during which a 28 U.S.C. § 2254
application is pending in this Court does not toll the one-year limitation period in
§ 2244(d) unless a properly filed collateral proceeding is pending in state court during
the same time. See Duncan v. Walker, 533 U.S. 167, 181-82 (2001) (holding that “an
application for federal habeas corpus review is not an ‘application for State postconviction or other collateral review’ within the meaning of 28 U.S.C. § 2244(d)(2)” and
“therefore did not toll the limitation period during the pendency of [an applicant’s] first
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federal habeas petition”). Finally, Applicant was informed that even if the instant action
currently is timely under § 2244(d) it does not mean that any future action filed by
Applicant will be timely.
Applicant was instructed that if he fails to provide a clear response indicating his
intentions he will have failed to show cause as directed, and the Court would dismiss
the instant action as a mixed petition.
On October 30, 2014, Applicant filed a pleading titled, “Petitioner’s Motion to
Show Cause,” ECF No. 27. In the Motion, Applicant states as follows:
Applicant arguably agrees with the Honorable United States District
Court that in the interest of justice, his best plan of review with this liberty
interest would be for the Court to Dismiss his unexhausted claims while he
retruns [sic] back to the State court for relief on the unexhausted claims.
The only relief in which Applicant knows that would permit him to pursue
his unexhausted claims in State court would fall under Crim. P. 35(A) To
Correct an Illegal Sentence. “Correction of an illegal sentence in State
court renews the three-year time bar set by Section 16-5-402(1). C.R.S.
(2007), for bringing collateral attacks on the defendant’s original sentence,
People v. Leyva, No. 05CA07-92, 2006 Colo. App. Lexus 2140, 2006 WL
3803942 (Colo. App. Dec. 28, 2006).
ECF No. 27 at 4. Applicant also states in the Motion that
[He] does have a properly filed postconviction motion 35(c) motion
pending on appeal which should satisfy the 1-year exception for returning
to federal court after the unexhausted claims are exhausted. . . .
Therefore, if this Honorable court deems that the State corrective
process as it applies to Colo. R. Crim. P. 35(A), would not be sufficient to
address the merits of claims and claims Four and Seven and as to claims
One and Three lacking specificity the Respondents do not show just what
that specificity is as to their misunderstanding.
Applicant moves this Honorable Court to Order that his Motion to
Show Cause be granted based upon constitutional standards, and
determine whether the merits of these claims are properly before the
Court for Fair assessment pursuant to 28 U.S.C. § 2254(d)(2). . . .
ECF No. 27 at 4-5.
Applicant concedes he has unexhausted claims and does not address
Respondents’ argument that Claim Six is at issue in the postconviction motion Applicant
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has pending in the Colorado Court of Appeals. Furthermore, his arguments are
convoluted and do not provide a clear response indicating his intentions. Therefore,
because Applicant has failed to comply with the October 7, 2014 Order, the Court will
dismiss the action without prejudice as a mixed petition.
The Court also 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 Applicant 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
ORDERED that the October 7, 2014 Order to Show Cause is discharged. It is
FURTHER ORDERED that the Application is denied and the action DISMISSED
WITHOUT PREJUDICE. It is
FURTHER ORDERED that in forma pauperis status on appeal is denied.
DATED at Denver, Colorado, this 17th day of
December , 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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