Gutierrez-Borjas v. No Named Respondents

Filing 4

ORDER Of Dismissal. This action is DISMISSED without prejudice. Leave to proceed in forma pauperis on appeal is denied. By Judge Lewis T. Babcock on 7/8/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01478-BNB
MANUEL ARMANDO GUTIERREZ-BORJAS,
Petitioner,
v.
[NO NAMED RESPONDENT]
Respondent.

ORDER OF DISMISSAL

Petitioner, Manual Armando Gutierrez-Borjas, is in the custody of the Federal
Bureau of Prisons and is incarcerated at USP-Lompoc, California. Petitioner initiated
this action by submitting a Letter (ECF No. 1) to the Court in which he appears to
challenge the validity of his criminal conviction in District of Colorado Case No. 13-cr00250-JLK. This action was opened as a civil suit pursuant to 28 U.S.C. § 2241.
On May 28, 2014, Magistrate Judge Boyd N. Boland ordered Mr. GutierrezBorjas to respond and show cause, within thirty (30) days from the date of the order,
why this action should not be dismissed because he has an adequate and effective
remedy pursuant to 28 U.S.C. § 2255 in the sentencing court. The Court also observed,
however, that a § 2255 motion would not be ripe at this time because Petitioner’s direct
appeal in the United States Court of Appeals for the Tenth Circuit is pending.1 See
United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) (“Absent extraordinary

1

See Criminal Action No. 13-cr-00350-JLK, at No. 40.

circumstances, the orderly administration of criminal justice precludes a district court
from considering a § 2255 motion while review of the direct appeal is still pending.)” In
the alternative, Magistrate Judge Boland directed Mr. Gutierrez-Borjas to file an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, within thirty (30)
days, if he was challenging the execution of his sentence. Petitioner has now failed to
respond to the May 28, 2014 show cause order or to file a § 2241 Application.
The Court must construe the Petitioner’s filings 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 this action.
Mr. Gutierrez-Borjas pleaded guilty to one count of Illegal Alien in Possession of
a Firearm, in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2), and one count of
Illegal Re-Entry After Deportation, in violation of 8 U.S.C. § 1326(a), in Case No. 13-cr00250-JLK. He was sentenced to an aggregate 32-month prison term with the Federal
Bureau of Prisons. Judgment was entered on December 17, 2013. As mentioned
previously, Mr. Gutierrez-Borjas filed an appeal with the Circuit Court of Appeals for the
Tenth Circuit, which is pending.
In his Letter initiating this action, Mr. Gutierrez-Borjas asserts that his conviction
violated the Constitution. (ECF No. 1). He also appears to be challenging the legality of
his sentence and the quality of counsel’s representation before the trial court. (Id.).
The purposes of an application for a writ of habeas corpus pursuant to § 2241

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and a motion pursuant to 28 U.S.C. § 2255 are distinct and well established. “A petition
under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its validity” and
“[a] 28 U.S.C. § 2255 petition attacks the legality of detention.” Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir. 1996). A habeas corpus petition pursuant to 28 U.S.C. § 2241
“is not an additional, alternative, or supplemental remedy, to the relief afforded by
motion in the sentencing court under § 2255.” Williams v. United States, 323 F.2d 672,
673 (10th Cir. 1963) (per curiam). Instead, “[t]he exclusive remedy for testing the validity
of a judgment and sentence, unless it is inadequate or ineffective, is that provided for in
28 U.S.C. § 2255.” Johnson v. Taylor, 347 F.2d 365, 366 (10th Cir. 1965); see 28
U.S.C. § 2255(e). Finally, the remedy available pursuant to § 2255 is inadequate or
ineffective only in “extremely limited circumstances.” Caravalho v. Pugh, 177 F.3d
1177, 1178 (10th Cir. 1999).
Mr. Gutierrez-Borjas fails to demonstrate that the remedy available to him
pursuant to § 2255 is inadequate or ineffective to attack his sentence. Further, he has
not filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241.
Accordingly, it is
ORDERED that this action is DISMISSED without prejudice because Mr.
Gutierrez-Borjas fails to demonstrate that the remedy available to him in his criminal
action, Case 13-cr-00250-JLK , is ineffective or inadequate to test the legality of his
conviction and sentence, and he has otherwise failed to comply with the May 28, 2014,
Order. It is

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FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. 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. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Gutierrez-Borjas files a notice of appeal he must also 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.
DATED at Denver, Colorado, this

8th

day of

July

, 2014.

BY THE COURT:

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

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