Robledo-Valdez v. Falk et al
ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/17/14. No certificate of appealability will issue. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01301-BNB
FALK, et al., and
ORDER OF DISMISSAL
Applicant, Craig Robledo-Valdez, has filed pro se an amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 19). On August 6,
2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a preliminary
response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. §
2244(d) and exhaustion of state remedies if Respondents intend to raise either or both
of those defenses in this action. On August 21, 2014, Respondents filed a Preliminary
Response of the Defendants to Application for Writ of Habeas Corpus (ECF No. 24)
arguing that the action should be dismissed for failure to exhaust state remedies.
Respondent contends that Mr. Robledo-Valdez has not fairly presented his claims to the
Colorado appellate courts in a petition for writ of habeas corpus or in any other state
court proceeding. On September 5, 2014, Mr. Robledo-Valdez filed a document titled
“Opening Brief” (ECF No. 26) in reply to the preliminary response.
The Court must construe the amended application and other papers filed by Mr.
Robledo-Valdez liberally 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 dismiss the action for
failure to exhaust state remedies.
Mr. Robledo-Valdez initiated this action while he was a prisoner in the custody of
the Colorado Department of Corrections following parole revocation proceedings.
According to documentation provided by Respondents with their preliminary response,
the Colorado Board of Parole revoked Mr. Robledo-Valdez’s parole for 150 days
following a hearing on January 17, 2014. (See ECF No. 24-3.) Following a hearing on
June 16, 2014, the Colorado Board of Parole rescinded Mr. Robledo-Valdez’s release
on parole and extended his mandatory release date an additional ninety days because
of a prison disciplinary conviction. (See ECF No. 24-5.) Mr. Robledo-Valdez alleges in
his “Opening Brief” that he again has been released on parole.
Mr. Robledo-Valdez asserts two claims in the amended application contending
that the January 2014 parole revocation proceedings were sham proceedings because
he was arrested unlawfully and subjected to an illegal search and because the charges
underlying the parole revocation were false. Mr. Robledo-Valdez also asserts a double
jeopardy claim contending that any further incarceration violates his constitutional rights
because he completed his sentence in January 2013 and he has not been given credit
for time he spent in a Texas jail last year on a Colorado parole hold. Mr. RobledoValdez finally claims that his parole revocation sentence illegally was extended in June
2014. As relief Mr. Robledo-Valdez asks that his sentence be discharged.
Mr. Robledo-Valdez may not pursue his claims in federal court in a habeas
corpus action unless he has exhausted state court remedies. See Montez v. McKinna,
208 F.3d 862, 866 (10th Cir. 2000). The exhaustion requirement is satisfied once the
federal claims have been presented fairly to the state courts. See Castille v. Peoples,
489 U.S. 346, 351 (1989). Fair presentation requires that the federal issues be
presented properly “to the highest state court, either by direct review of the conviction or
in a postconviction attack.” Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th
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
v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252
(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner
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, 36566 (1995) (per curiam).
Finally, “[t]he 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 showing he has exhausted all
available state remedies for each particular claim. See Miranda v. Cooper, 967 F.2d
392, 398 (10th Cir. 1992). A blanket statement that state remedies have been
exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95 (10th Cir.
1993); see also Fuller v. Baird, 306 F. App’x 430, 431 n.3 (10th Cir. 2009) (stating that a
bald assertion unsupported by court records is insufficient to demonstrate state
remedies are exhausted).
Mr. Robledo-Valdez alleges in the amended application that he has exhausted
state remedies by filing a parole appeal, numerous grievances, a state habeas action in
the Jefferson County District Court, and a state action pursuant to Rule 106 of the
Colorado Rules of Civil Procedure. Mr. Robledo-Valdez addresses the exhaustion issue
in his “Opening Brief” as follows:
It appears the [Respondents’] only argument is that I failed to
exhaust state remedies. This is not entirely true. I tried filing
with the Jefferson [C]ounty court as a CRCP 106. I also
tried a habeas with Logan [C]ounty. The Court is well aware
of the lengthy process involved in seeking relief from state
courts and going through the Supreme Court of Colorado.
Being that my constitutional rights were violated and that the
[S]tate of Colorado itself was oppressing me and
incarcerating me, it seemed more reasonable to bring this to
the Federal court. My earned time credits were all wrong,
my parole was unlawful, and the state courts have
repeatedly shot me down. This court has full jurisdiction to
hear the case and make a determination, especially
considering I am from Texas, I am not a resident of
Colorado. This case concerns my unlawful extradition as
well as my unlawful reincarceration.
(ECF No. 26 at 1.)
The Court is not persuaded that Mr. Robledo-Valdez has satisfied his burden of
showing he has exhausted state remedies. He fails to demonstrate that he has fairly
presented his claims to the Colorado Supreme Court or that no adequate state
remedies are available. Furthermore, the documentation provided by Respondents with
their preliminary response indicates that Mr. Robledo-Valdez has not fairly presented
any of his claims in this action to the Colorado Supreme Court. Therefore, the action
will be dismissed for failure to exhaust state remedies.
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 amended habeas corpus application (ECF No. 19) is denied
and the action is 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 without prejudice to the filing of a motion seeking leave to proceed in forma
pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 17th day of
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
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