Mendez II v. Diggins

Filing 17

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/29/14. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00851-BNB
JOSEPH LINO MENDEZ III,
Applicant,
v.
CHIEF ELIAS DIGGINS, and
THE ATTORNEY GENERAL FOR THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Joseph Lino Mendez III, was incarcerated at the Denver County Jail
when he initiated this action on March 14, 2014, by filing an Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) challenging his parole hold.
He since has informed the Court that he is a prisoner in the custody of the Colorado
Department of Corrections (DOC) who currently is incarcerated at the Denver Reception
and Diagnostic Center. He has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915.
On May 28, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No.
9) 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.
On June 18, 2014, Respondent, Attorney General for the State of Colorado, filed

a preliminary response (ECF No. 14). Also on June 18, Respondent, Chief Elias
Diggins, joined in the preliminary response filed by the Colorado attorney general. See
ECF No. 15. Mr. Mendez has not filed a reply to the preliminary response, although he
was afforded the opportunity to do so. Instead, on June 18 he filed a Prisoner
Complaint (ECF No. 13) for money damages that challenged his parole hold and
asserted a violation of his constitutional rights stemming from a co-inmate attack.
Mr. Mendez’s civil rights claims for money damages are 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. Mendez may pursue his habeas corpus claim in the instant action. If he
intends to assert civil rights claims challenging the conditions of his confinement, he
2

must file a separate civil rights action pursuant to § 1983. Therefore, the Prisoner
Complaint (ECF No. 13) will be dismissed without prejudice.
The Court must construe liberally the filings of Mr. Mendez 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. Mendez alleges that he is a DOC offender
who was on parole. ECF No. 1 at 4. On or about July 30, 2013, Mr. Mendez was
arrested and held on a new crime of second-degree burglary. ECF No. 1 at 9; see also
ECF No. 14, ex. A (state court register in People v. Mendez, Denver District Court Case
No. 2013CR3791) at 1-2. On August 6, 2013, a parole complaint was filed against Mr.
Mendez alleging that he had violated the terms and conditions of parole by committing
the offense of second-degree burglary and by his unsuccessful termination from
substance-abuse treatment at Broader Horizons in Denver, Colorado. ECF No. 1 at 910.
Mr. Mendez was detained in the Denver County Jail under a cash bond and,
pursuant to the direction of the DOC parole division, on a parole hold awaiting
sentencing on the new criminal charge. The parole board continued his revocation
hearing several times. Most recently, on April 11, 2014, it was continued to July 25,
2014. ECF No. 14, ex. B (parole board mittimus/finding and order of Colorado State
Board of Parole) at 1.
Mr. Mendez asserts that the parole hold and the denial of requested
3

administrative regulations violated his constitutional and due process rights (claim one).
He also asserts that his rights were violated because the parole board hearing officer
refused to dismiss his appointed counsel (claim two) in violation of his right to the
effective assistance of counsel, and because his parole officer refused to drop the
parole hold (claim three) in violation of his rights to due process and equal protection.
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
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
4

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
Cir. 1995).
Mr. Mendez 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. Mendez has failed to exhaust state remedies. In the 2013 criminal case, No.
2013CR3791, Mr. Mendez filed a motion for writ of habeas corpus in the Denver District
Court on January 24, 2014. ECF No. 14, ex. A at 4. However, the Denver District Court
5

has not yet addressed the motion. Id.
In Mr. Mendez’s current governing sentence, People v. Mendez, Denver District
Court Case No. 2007CR840, Mr. Mendez filed an application for writ of habeas corpus
on February 10, 2014. ECF No. 14, ex. C (state court register in No. 2007CR840) at 3.
On March 24, 2014, Denver District Court Judge Edward Bronfin denied a motion,
apparently the habeas corpus application, as moot. Id. Mr. Mendez also filed a motion
for writ of habeas corpus on July 11, 2007, in Mendez v. Colo. Dept. of Corr. Div. of
Adult Parole, Denver District Court Case No. 2007CV6680. ECF No. 14, ex. D (state
court register in No. 2007CV6680 at 2. On July 17, 2007, Judge Larry J. Naves denied
the motion. Id. In 1983 and 1985, Mr. Mendez also filed ten petitions for a writ of
habeas corpus in civil cases in Adams County. ECF No. 14, ex. E (state court register
list of civil and criminal case) at 3. Mr. Mendez has not filed an appeal in any of these
numerous motions for writ of habeas corpus. ECF No. 14, ex. F (state court register
appeals) at 1. Therefore, Mr. Mendez has not adequately present his claims to the
state courts, has failed to exhaust state court remedies, and therefore the instant action
will be dismissed.
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. Mendez 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.
6

Accordingly, it is
ORDERED that the Prisoner Complaint (ECF No. 13) filed on June 18, 2014, is
dismissed without prejudice as inappropriately filed in this habeas corpus action. It is
FURTHER 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 no certificate of appealability will issue because
Applicant has not made a substantial showing of the denial of a constitutional right. 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

29th

day of

August

, 2014.

BY THE COURT:

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

7