Albright v. Raemisch

Filing 36

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/13/14. 11 Motion to Set Aside Exhaustion Requirement is denied, and no certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01505-BNB
GREGORY DEAN ALBRIGHT,
Applicant,
v.
RICK RAEMISCH, Exec. Dir. CDOC,
DAVID WALCHER, Arapahoe County Sheriff, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Gregory Dean Albright, was incarcerated at the Arapahoe County
Detention Facility in Centennial, Colorado, when he initiated the instant action. He
subsequently informed the Court that he has been transferred to the Adams County
Detention Facility in Brighton, Colorado. Mr. Albright is a Colorado Department of
Corrections (DOC) offender who is on parole and awaiting the resolution of parole
revocation proceedings.
On May 29, 2014, Mr. Albright filed pro se an Application for Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1). On July 15, 2014, after being
ordered to do so, Mr. Albright filed pro se an amended Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 10). He is challenging his detention at
the Arapahoe County Detention Facility on a parole hold. He also challenges the DOC’s
application of good-time and earned-time credits to his criminal sentence. Also on July

15, Mr. Albright filed a motion titled “Motion to Set Aside Exhaustion Requirement” (ECF
No. 11).
On July 22, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to file
a preliminary response limited to raising the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. §
2254(b)(1)(A) if Respondents intended to raise either or both of those defenses in this
action. The July 22 order also directed Respondents to address the “Motion to Set
Aside Exhaustion Requirement.”
On August 11, 2014, Respondents filed a preliminary response (ECF No. 21)
arguing that the application should be denied and the action dismissed because the
claims Mr. Albright asserts are unexhausted. On August 26, 2014, Mr. Albright filed a
reply (ECF No. 22) to the preliminary response.
On October 6, 2014, Magistrate Judge Boland entered an order (ECF No. 28)
directing Respondents to supplement the record within fourteen days by filing copies of
Mr. Albright’s opening brief in Colorado Supreme Court Case No. 14SA130 and the
state supreme court’s order entered on August 11, 2014, denying the appeal from
Applicant’s state habeas corpus petition. The October 6 order also directed
Respondents to inform the Court of any other updates in Mr. Albright’s state court filings
pertinent to the resolution of this action, including but not limited to the hearing
scheduled for August 15, 2014, in Applicant’s petition for writ of habeas corpus for
unlawful detention pending in Arapahoe County District Court Case No. 14CV129, and
supplement the record with any orders entered in those state court filings. On October
20, 2014, Respondents filed their supplemental preliminary response (ECF No. 29).
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On November 6, 2014, Mr. Albright filed a notification (ECF No. 32) that he would
petition the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) for a writ
of mandamus seeking his release from incarceration. On the same day, the Tenth
Circuit notified Mr. Albright of the steps he must take to keep the mandamus proceeding
from being dismissed. See ECF No. 35.
The Court must construe liberally the amended application and other papers filed
by Mr. Albright 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 application and
dismiss the action.
Mr. Albright asserts four claims for relief in the amended application. He asserts
violations of his due process rights because of the alleged failure to provide a timely
revocation hearing (claim one) and equal protection rights because of the denial of
access to the state bail system and his detention on a parole hold (claim two). He
asserts a claim of cruel and unusual punishment under the Eighth Amendment for his
excessive bond (claim three). Finally, he asserts a violation of his Fourth Amendment
search and seizure rights based upon miscalculations of good-time and earned-time
credits (claim four).
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
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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
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. Albright is required to exhaust state remedies before he may raise his claims
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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). “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)).
If a “claim has been presented [to the state’s highest court] for the first and only
time in a procedural context in which its merits will not be considered unless there are
special and important reasons therefor, . . . [r]aising the claim in such a fashion does
not, for the relevant purpose, constitute fair presentation.” Castille, 489 U.S. at 351
(internal quotation marks and citation omitted); see also Parkhurst v. Shillinger, 128
F.3d 1366, 1369 (10th Cir. 1997) (state procedure that is discretionary and limited in
scope does not constitute fair presentation). The Colorado Supreme Court, in its
discretion, may decline to address the merits of claims asserted in an original petition
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for an extraordinary writ. See Colo App. R. 21; see also Rogers v. Best, 171 P.2d 769,
770 (Colo. 1946). Furthermore, relief under Colorado Appellate Rule 21 “shall be
granted only when no other adequate remedy, including relief available by appeal . . ., is
available.” Colo. App. R. 21(a)(1). As a result, the denial of an original petition for an
extraordinary writ by the Colorado Supreme Court does not indicate that the court has
considered the merits of the argument. See Bell v. Simpson, 918 P.2d 1123, 1125 n.3
(Colo. 1996).
Mr. Albright initiated four separate state court proceedings before and during the
time he has been seeking relief in this Court, each of which is discussed in detail below.
Respondents argue that Mr. Albright has not fully exhausted his state court remedies
prior to filing the instant action. They contend the habeas corpus application should be
denied and the action dismissed for that reason.
Washington County District Court Case No. 14CV1
On February 10, 2014, Mr. Albright filed a petition for writ of habeas corpus for
unlawful detention in Washington County District Court Case No. 14CV1. See ECF No.
21, ex. A-1 (Writ of Habeas Corpus for Unlawful Detention). Based upon the Court’s
review, he does not appear to assert all the federal constitutional claims he raises here.
On February 19, 2014, the Washington County District Court entered an order denying
Mr. Albright’s habeas corpus petition. See ECF No. 21, ex. A-2 (Order: Motion – Writ
of Habeas Corpus for Unlawful Detention). Mr. Albright appealed the decision of the
Washington County District Court, and the matter was pending in the Colorado
Supreme Court in Case No. 14SA130 as of the date of the preliminary response. See
ECF No. 21 at 4-5, ex. A-3 (Order of Court dated April 29, 2014). According to the April
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29 order, appellant’s opening brief was due on or before June 4, 2014. See ECF No.
21, ex. A-3 at 2. According to the supplemental preliminary response, on June 26,
2014, the Colorado Supreme Court issued an order noting that the opening brief was
due but not filed on June 4, and indicating that if the opening brief was not filed by
August 1, 2014, the case would be submitted to the Court for resolution based on the
pleadings currently on file. See ECF No. 29, ex. A-11. The June 26 order accepted as
a supplemental notice of appeal the pleading titled “Submission of Revised Resolutions
and Relief Sought.”
In his reply, Mr. Albright alleges that the state supreme court denied the appeal
from his state habeas corpus petition on August 11, 2014. ECF No. 22 at 2-3.
According to the supplemental preliminary response, the Colorado Supreme Court
entered its order on August 11, 2014, affirming the decision of the Washington County
District Court without Mr. Albright having filed an opening brief. See ECF No. 29, ex. A8. Mr. Albright did not file his opening brief in No. 14SA130 until August 27, 2014. See
ECF No. 29, ex. A-9. On September 3, 2014, the state supreme court issued an order
noting that (1) Mr. Albright’s opening brief was received on August 27; (2) the court
affirmed the Washington County District Court order on August 11, 2014; and (3) the
case was closed. See ECF No. 29, ex. A-10. Therefore, because he failed to present
his claims fairly to the state supreme court, see Castille, 489 U.S. at 351, Mr. Albright
has not exhausted state court remedies before seeking federal court review.
Adams County District Court Case No. 08CR2090
On April 1, 2014, Mr. Albright filed a petition for postconviction relief pursuant to
Rule 35(c) of the Colorado Rules of Criminal Procedure in Adams County District Court
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Case No. 08CR2090, again contesting the parole revocation proceedings, although he
does not appear to assert all the federal constitutional claims he raises here. See ECF
No. 21, ex. A-4 (Petition for Postconviction Relief Pursuant to Crim. P. 35(c)). On June
16, 2014, the Adams County District Court issued its order denying Mr. Albright’s
postconviction Rule 35(c) motion. See ECF No. 21, ex. A-5 (Order). Mr. Albright has
not appealed from the denial. See ECF No. 21 at 5. Therefore, Mr. Albright has not
exhausted state court remedies in this action before seeking federal court review.
Colorado Supreme Court Case No. 14SA132
On April 29, 2014, Mr. Albright filed a “Petition for Colorado Supreme Court
Original Jurisdiction in the First Instance” in Colorado Supreme Court Case No.
14SA132. See ECF No. 29, ex. A-14. The state supreme court construed the petition
as an original proceeding pursuant to Colo. App. R. 21, see ECF No. 29, ex. A-11, and
on August 11, 2014, denied the petition. See ECF No. 29, ex. A-15. The original
proceeding Mr. Albright filed in the Colorado Supreme Court does not satisfy the fair
presentation requirement because the denial of the petition does not indicate that the
Colorado Supreme Court considered the merits of the petition. The state supreme court
may, in its discretion, decline to address the merits of the claims asserted in an original
petition for an extraordinary writ. See Colo App. R. 21; see also Rogers, 171 P.2d at
770. Therefore, Mr. Albright has not exhausted state court remedies in this action prior
to seeking federal court review.
Arapahoe County District Court Case No. 14CV129
On June 3, 2014, Mr. Albright filed a petition for writ of habeas corpus for

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unlawful detention in Arapahoe County District Court Case No. 14CV129. ECF No. 21,
ex. A-6 (Writ of Habeas Corpus for Unlawful Detention). Again, based upon the Court’s
review, he does not appear to assert all the federal constitutional claims he raises here.
On July 31, 2014, the state district court issued a writ and set the matter for a hearing
on August 8, 2014. See ECF No. 21, ex. A-7 (Writ of Habeas Corpus for Plaintiff
Gregory D. Albright). At the August 8 hearing, the district court set the matter for the
hearing on August 15, 2014, so that the Court could issue its ruling. See ECF No. 21 at
5. In his reply, Mr. Albright asserts that his state habeas corpus petition was denied on
August 15. See ECF No. 22 at 2. According to the supplemental preliminary response,
the Arapahoe County District Court held a hearing on August 15 and, at Mr. Albright’s
request, heard additional argument before entering its oral ruling denying Mr. Albright’s
petition. On August 27, 2014, Mr. Albright filed a petition for rehearing (ECF No. 29, ex.
A-20), which apparently remains pending in the Arapahoe County District Court. To
date, Mr. Albright has not appealed from the decision by the Arapahoe County District
Court in No. 14CV129. Therefore, Mr. Albright has not exhausted state court remedies
in this action before seeking federal court review.
Motion to Set Aside Exhaustion Requirement (ECF No. 11)
Respondents argue Mr. Albright’s motion to set aside the exhaustion requirement
should be denied. Section 2254(b)(1)(B) excuses a habeas corpus applicant from
exhaustion if “(i) there is an absence of available State corrective process; or (ii)
circumstances exist that render such process ineffective to protect the rights of the
applicant.” Id.
The current record before the Court belies any claim that there is an absence of
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available state processes. As discussed above, in No. 14CV1, Mr. Albright petitioned
the Washington County District Court, which denied his petition. He appealed from this
ruling to the Colorado Supreme Court, which affirmed the district court decision without
considering Mr. Albright’s opening brief filed past the filing deadline.
Mr. Albright filed No. 14SA132, an original proceeding pursuant to Colo. App. R.
21 the Colorado Supreme Court, which denied the petition without considering its
merits. He presented claims to the district courts in Adams and Arapahoe counties.
The Adams County District Court in No. 08CR2090 denied his Colo. R. Crim. P. 35(c)
motion, and he has not appealed from that denial. The Arapahoe County District Court
in No. 14CV129 issued a writ, held a hearing on August 8, 2014, and denied the petition
for writ of habeas corpus after another hearing on August 15, 2014. Mr. Albright has not
appealed from the denial, and his petition for rehearing appears to be pending in the
district court.
Similarly, Mr. Albright cannot show that circumstances exist rendering the
available State corrective process ineffective to protect his rights. He has presented
claims to the district courts in Washington, Adams, and Arapahoe counties, and to the
Colorado Supreme Court, both through direct appeal and original proceeding. Simply
because Mr. Albright has not achieved the relief he seeks does not mean the available
state corrective process is ineffective to protect his rights.
As a result, Mr. Albright has failed to make the required showing that his
circumstances fall within the recognized exemptions from the exhaustion requirement.
Finally, the Court notes that Mr. Albright’s efforts to exhaust have occurred while this
case has been pending in this Court. Mr. Albright is required to exhaust state remedies
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before he may raise his claims in federal court. See Montez, 208 F.3d at 866.
The habeas corpus application will be denied and the action dismissed for failure
to exhaust state remedies. Mr. Albright’s allegations concerning his health asserted in
emergency filings such as ECF Nos. 20 (Petition for Emergency Relief and Intervention)
and 26 (Emergency Filing for Federal Intervention) are inappropriately filed in this
habeas corpus action.
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 Applicant 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 Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 (ECF No. 10) is DENIED and the action DISMISSED without
prejudice for failure to exhaust state remedies. It is
FURTHER ORDERED that the motion titled “Motion to Set Aside Exhaustion
Requirement” (ECF No. 11) is DENIED. 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.
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
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pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that any other pending motions or petitions are denied as
moot.
DATED at Denver, Colorado, this 13th day of

November , 2014.

BY THE COURT:

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

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