Burnham v. Denver Sheriff Department, The et al

Filing 23

ORDER Of Dismissal. The amended habeas corpus application (ECF No. 7 ) 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 6/5/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00448-BNB
COREY C. BURNHAM,
Applicant,
v.
SHERIFF GARY WILSON,
THE DENVER SHERIFF DEPARTMENT,
THE STATE BOARD OF PAROLE, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Corey C. Burnham, was a prisoner incarcerated at the Denver County
Jail when he initiated this action by filing pro se on February 20, 2014, an Application for
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging his
parole hold. He has since informed the Court that he currently resides at the St. Francis
Center, 2323 Curtis Street, Denver, CO 80205 (ECF No. 22). On March 26, 2014, he
filed an amended habeas corpus application (ECF No. 7). He has been granted leave
to proceed pursuant to 28 U.S.C. § 1915.
On April 2, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
10) directing Respondents 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 Respondents intended to raise either
or both of those defenses in this action. Magistrate Judge Boland also directed

Respondents to advise the Court who the proper Respondents are and move for
substitution of party if Respondents are not the appropriate parties to respond to
Applicant’s claims challenging his parole hold.
On April 24, 2014, Respondents, the State Board of Parole and Colorado
Attorney General, filed a preliminary response (ECF No. 16). Mr. Burnham 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. Burnham 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 amended habeas corpus application. and dismiss the
action.
In the amended habeas corpus application, Mr. Burnham alleges that he was
sentenced to eighteen months of incarceration in the Colorado Department of
Corrections with one year of mandatory parole. He further alleges that while on parole
he was arrested for a parole violation and charged with a new crime. ECF No. 7 at 7.
Mr. Burnham appears to claim that because of the new pending criminal charges, the
Parole Board would not go forward with a parole revocation hearing. He also appears
to allege that because of a parole hold he is prevented from posting bail on the pending
criminal charges. He asserts that, prior to filing the instant action, he filed a “Rule 106 in
the Denver County District Court,” presumably referring to a complaint filed pursuant to
Rule 106 of the Colorado Rules of Civil Procedure, but he claims the complaint has not
been ruled upon. ECF No. 7 at 2, 3.
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Judicial review of the execution of a sentence is governed by 28 U.S.C. § 2241.
Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). A federal court may only
grant habeas 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)(3). 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 § 2241 habeas actions 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 [28 U.S.C.] § 2254.” Montez v. McKinna, 208 F.3d
862, 866 (10th Cir. 2000).
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.
Picard v. Connor, 404 U.S. 270, 275-76 (1971) (internal citation and quotation marks
omitted). “The exhaustion requirement is not one to be overlooked lightly. Principles of

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comity and federalism demand that the requirement be strictly enforced.” Hernandez v.
Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995) (citations and internal quotation marks
omitted).
Mr. Burnham 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. Burnham’s federal habeas challenge must be dismissed for failure to exhaust
state remedies. “A state prisoner is generally barred from obtaining federal habeas
relief unless the prisoner has properly presented his or her claims through one
‘complete round of the State’s established appellate review process.’” Woodford v.
Ngo, 548 U.S. 81, 92 (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)). While
Mr. Burnham claims that he has filed a “Rule 106” complaint in Denver District Court, he
demonstrates that he has failed to present his claims, in any form, to the state’s highest
courts. In fact, Burnham admits that even concerning the action filed in Denver District
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Court, he has not yet received a ruling in that matter. Therefore, his claim has not been
adequately presented to the state courts, he has failed to exhaust state remedies, and
the application must 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. Burnham 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 amended habeas corpus application (ECF No. 7) 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
FURTHER ORDERED that any pending motions are denied as moot.
DATED at Denver, Colorado, this

5th day of

June

, 2014.

BY THE COURT:

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

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