Ippolito v. Mink

Filing 34

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/23/14. No certificate of appealability will issue, and 27 Motion for Writ of Mandamus is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01566-GPG
JOSEPH C. IPPOLITO,
Plaintiff,
v.
STATE OF COLORADO: DEPARTMENT(S) OF CORRECTIONS/DIVISION OF ADULT
PAROLE,
JOHN W. HICKENLOOPER: GOVERNOR,
RICK RAEMISCH: EXECUTIVE DIRECTOR (DOC),
WALT PESTERFIELD: DIRECTOR OF ADULT PAROLE COLORADO DEPT. OF
CORRECTIONS,
JOHN AND JANE DOES ET AL. X-XL, 1-100, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Joseph C. Ippolito, resides at the St. Francis Center in Denver,
Colorado.1 He initiated this action by filing an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. Mr. Ippolito has been granted leave to proceed pursuant
to 28 U.S.C. § 1915.
I. Procedural History
On June 5, 2014, the Court reviewed the § 2241 Application and determined that
it failed to comply with Fed. R. Civ. P. 8. The Court directed Mr. Ippolito to file an
Amended Application within thirty (30) days. Mr. Ippolito filed his Amended § 2241
Application on June 19, 2014. In the Amended § 2241 Application (ECF No. 7), Mr.

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Although Mr. Ippolito has provided the St. Francis Center as his residential address, a copy of an
October 24, 2014 Order sent to that address was returned to the Court as undeliverable. (ECF No. 31). It
is Mr. Ippolito’s burden to provide the Court with a valid address. See D.C. COLO.L.AttnyR 5(c).

Ippolito purported to challenge the implementation of certain bond conditions imposed
by the state district court, which he failed to adhere to, and which resulted in bond
revocation.
On June 26, 2014, the Court directed the Jefferson County Sheriff, the
Respondent named in the Amended § 2241 Application, to file a preliminary response
addressing the issues of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state
court remedies. The Sheriff filed a Preliminary Response on July 16, 2014 (ECF No.
17). In the Preliminary Response, the Sheriff conceded that this action is timely under
the AEDPA one-year limitation period, but contended that Applicant failed to exhaust
available state court remedies for his claims. (Id. at 3-6). Mr. Ippolito filed a Reply on
August 6, 2014 (ECF No. 22), in which he asserted that he has exhausted all available
state court remedies.
Review of the parties’ filings revealed that Mr. Ippolito was convicted on June 18,
2013 in Jefferson County District Court Case No. 12CR2252 for violation of bail bond
conditions. (ECF No. 17-3). He was sentenced to a 12-month term of imprisonment
with the Colorado Department of Corrections (CDOC), to run consecutive to the 48month sentence he received based on an earlier conviction for assault in the third
degree. (Id.). Applicant was released from CDOC custody on August 19, 2014. (ECF
No. 24).
In an August 22, 2014 Order (ECF No. 25), Magistrate Judge Boyd N. Boland
advised Mr. Ippolito that because he was convicted of violating the conditions of his
bond before he filed this action on June 3, 2014, any challenge to the legality of pre-trial
detention is moot. See Thorne v. Warden, Brooklyn House of Detention for Men, 479

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F.2d 297, 299 (2d Cir.1973) (“Since [petitioner] is now held as a convicted defendant
rather than merely on a criminal charge not yet brought to trial, the issue as to the
legality of his continued pretrial detention has been mooted, and it therefore becomes
unnecessary to resolve the constitutional issues presented.”); Fassler v. United States,
858 F.2d 1016, 1018 (5th Cir.1988) (holding that federal pretrial detainee's habeas
corpus application was rendered moot by his conviction); Barker v. Estelle, 913 F.2d
1433, 1440 (9th Cir.1990) (a petitioner's conviction moots the challenge to the prior
detention even if the petitioner is currently incarcerated under the conviction itself);
Williams v. Slater, No. 08-4047, 317 F. App’x 723, 724 (10th Cir. June 20, 2008)
(unpublished) (same).
Magistrate Judge Boland further instructed Mr. Ippolito in the August 22 Order
that if his intent was to challenge the validity of his conviction in Jefferson County
District Court Case No. 12CR2252, he must proceed under 28 U.S.C. § 2254, not
§ 2241. (See ECF No. 25). Magistrate Judge Boland further warned him that if he filed
a § 2254 Application, it must comply with Fed. R. Civ. P. 8 and Rule 4 of the Rules
Governing Habeas Corpus, must not exceed 30 pages, and must be typed or written
legibly. (Id.). Magistrate Judge Boland ordered Mr. Ippolito to file an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that complied with the August 22
Order within thirty (30) days.2 (Id.). Mr. Ippolito filed a § 2254 Application on
September 17, 2014 (ECF No. 26), along with a document titled “Proof of Exhaustion
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The Court notes that Applicant’s release from prison did not render relief under 28 U.S.C. § 2254
moot. There is a presumption that the collateral consequences of a criminal conviction are adequate to
satisfy Article III’s case or controversy requirement. See Spencer v. Kemna, 523 U.S. 1, 10-11 (1998).
See also United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000) (explaining that “there is a
presumption of sufficient collateral consequences” where the petitioner's claims challenge the underlying
conviction).

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Requirement Pursuant to 2254(B)(1).” (ECF No. 28).
Magistrate Judge Boland thereafter reviewed the § 2254 Application in an
October 6, 2014 Order and found it to be deficient for the following reasons: (1) the
Application improperly named as Respondents the State of Colorado: Department of
Corrections/Division of Adult Parole, John W. Hickenlooper (Colorado Governor), Rick
Raemisch (CDOC Executive Director), and Walt Pesterfield (Director of Adult Parole,
CDOC); the only proper respondent to a habeas corpus action is the petitioner’s
immediate custodian, see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); (2) instead of
requesting immediate release from custody, which is the traditional function of the writ,
see Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), Mr. Ippolito asks the Court to
enjoin the “parties” from “Retaliation & Harassment of any type as a result of this action”
(ECF No. 26, at 28); and, (3) it is questionable whether the § 2254 Application complies
with the requirements of Fed. R. Civ. P. 8. (See ECF No. 29).
Notwithstanding, Magistrate Judge Boland declined to enter an order directing
Mr. Ippolito to file an amended application to cure the deficiencies. Instead, on October
6, 2014, Magistrate Judge Boland ordered Mr. Ippolito to show cause in writing, within
thirty (30) days, why the Application should not be dismissed as procedurally defaulted.
(ECF No. 29).
The Court may raise the issue of procedural default sua sponte so long as the
petitioner is afforded notice and an opportunity to respond. See Hardiman v. Reynolds,
971 F.2d 500, 505 (10th Cir. 1992). Mr. Ippolito did not respond to the order to show
cause by the court-ordered deadline. The Court assumes that Applicant received the
October 6 Order because the copy of the order mailed to Plaintiff at the address on file

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was not returned to the Court as undeliverable.
II. Applicable legal standards
Mr. Ippolito’s pro se filings are afforded a liberal construction. 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 does not act as an advocate for a pro se litigant, see Hall,
935 F.2d at 1110. For the reasons discussed below, this action will be dismissed as
procedurally barred.
Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus
may not be granted unless it appears that the applicant has exhausted state remedies
or that no adequate state remedies are available or effective to protect the applicant’s
rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). 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). The petitioner must have presented his
claim through one “complete round of the State's established appellate review process.”
Woodford v. Ngo, 548 U.S. 81, 92 (2006) (citations and internal quotation marks
omitted); see also Dever, 36 F.3d at 1534. “The 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 that
he has exhausted all available state remedies. See Miranda v. Cooper, 967 F.2d 392,
398 (10th Cir. 1992).
If a habeas petitioner “failed to exhaust state remedies and the court to which the
petitioner would be required to present his claims in order to meet the exhaustion
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requirement would now find the claims procedurally barred . . . there is a procedural
default. . . . .” Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991); Anderson v.
Sirmons, 476 F.3d 1131, 1139-40 n.7 (10th Cir. 2007) (applying anticipatory procedural
bar). A claim that has been procedurally defaulted in the state courts on an
independent and adequate state procedural ground is precluded from federal habeas
review, unless the prisoner can demonstrate cause for the default and actual prejudice
as a result of the federal violation, or demonstrate that failure to consider the claim will
result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750; Cummings v.
Sirmons, 506 F.3d 1211, 1224 (10th Cir. 2007).
A petitioner’s pro se status does not exempt him from the requirement of
demonstrating either cause and prejudice or a fundamental miscarriage of justice. See
Lepiscopo v. Tansy, 38 F.3d 1128, 1130 (10th Cir. 1994).
III. Analysis
The copies of state court records provided by the parties establishes that Mr.
Ippolito was convicted in state court pursuant to his guilty plea in June 2013 and did not
appeal the conviction. Instead, Mr. Ippolito filed a letter with the state district court on
September 6, 2013, which the state court construed as a post-conviction motion, under
Colo. Crim. P. Rule 35(c). (ECF No. 28, at 3-7). In the state post-conviction motion,
Applicant raised the same claims that he asserts in this federal habeas proceeding. (Id.
at 5). The state district court denied the Rule 35(c) motion on January 16, 2014. The
court’s order stated, in pertinent part:
In 12CR2252, Ippolito pled guilty to Violation of Bail Bond Conditions, in
violation of C.R.S. section 18-8-212(1), and was sentenced to 12 months
in the [CDOC], consecutive to 12CR846. The charge and conviction in
12CR2252 is based on conduct that occurred between June 14, 2012 and
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July 20, 2012, after Mr. Ippolito posted his second bond in 12CR846. The
revocation of Mr. Ippolito’s first bond was based on his failure to appear
for scheduled BA and UAs, three positive UAs for cocaine, and one
positive BA for alcohol. However, Mr. Ippolito’s conviction in 12CR2252 is
not based on collection, use, testing, or disclosure of this information–
instead it is based on his failure to appear for his preliminary hearing and
failure to report to pretrial services. Therefore, whatever happened during
the revocation of his first bond is not relevant to his conviction in
12CR2252 because it was never charged. Furthermore, the noncompliance with bond conditions during the first revocation is unrelated to
the assault conviction. Evidence about failure to report for testing or “hot”
test results was not disclosed to the jury and Mr. Ippolito does not
specifically argue how it tainted the proceedings.
The Court finds there are no grounds under Crim. P. 35(c) justifying relief.
(Id. at 6).
There is nothing in this Court’s file to indicate that Mr. Ippolito appealed the
January 16, 2014 order denying his request for post-conviction relief to the Colorado
Court of Appeals, and Applicant has failed to demonstrate otherwise.
The state court records attached to the Sheriff’s Preliminary Response reflect
that sometime in 2013, Applicant initiated a civil action in Jefferson County District Court
Case No. 2013CV942 with a document titled “Statements of the Nature and the Extent
of Injuries Claimed by Mr. Ippolito.” (ECF No. 17-6, at 1). The civil action was
dismissed by the state district court on January 2, 2014 for Applicant’s failure to
prosecute. (ECF No. 17-7). Mr. Ippolito filed a Petition for a Writ of Mandamus with the
Colorado Supreme Court (related to Jefferson County District Court Case Nos.
2013CV942 and 2012CR2252), which was denied on May 15, 2014. (ECF No. 17-8).
He also filed a Petition for Writ of Habeas Corpus directly with the Colorado Supreme
Court, which was denied the same date. (ECF No. 28, at 11). On May 20, 2013,
Applicant filed documents with the Colorado Supreme Court purporting to be an
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“appeal.” (ECF No. 28, at 18-21).
“Raising [a] claim in” a “procedural context in which its merits will not be
considered unless ‘there are special and important reasons therefor’” does not
“constitute ‘fair presentation’” for purposes of satisfying the state exhaustion
requirements. Castille v. Peoples, 489 U.S. 346, 351 (1989). See also Parkhurst v.
Shillinger, 128 F.3d 1366, 1369 (10th Cir.1997) (petition for discretionary state supreme
court review did not constitute fair presentation); accord Esquibel v. Williamson, No. 101357, 421 F. App’x. 813, 815 (10th Cir. Dec. 3, 2010) (unpublished) (concluding that a
petition for writs of prohibition and mandamus filed with the Colorado Supreme Court
pursuant to Colo. R.App. P. 21 was not the equivalent of a direct appeal and thus did
not satisfy the exhaustion requirement); Bell v. Simpson, 918 P.2d 1123, 1125 n. 3
(Colo.1996) (petition seeking the exercise of the Colorado Supreme Court's original
jurisdiction is “not a substitute for appeal”) (en banc)).
Mr. Ippolito also represents that he filed a petition for habeas relief under
§ 13-45-101, C.R.S., in the state district court on September 17, 2012 in Case No.
12cv846 (later re-assigned as Case No. 13cv780). (ECF No. 22, at 5-6). However, the
state habeas petition was filed before he was convicted in June 2013 of violating the
terms of his bail bond conditions, and, therefore, cannot satisfy the exhaustion
requirement, which requires him to challenge the legality of his conviction in the state
courts prior to seeking federal habeas relief.
In short, the Court’s file demonstrates that Mr. Ippolito failed to properly exhaust
his state court remedies before seeking relief under 28 U.S.C. § 2254. He did not
appeal the state court’s denial of his state post-conviction motion to the Colorado Court
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of Appeals and his other state court filings do not satisfy the exhaustion requirement.
If Mr. Ippolito attempted to raise his claims in a second state post-conviction
motion at this time, the motion would be barred by the abuse of the writ doctrine
embodied in Colo. R. Crim. P. 35(c)(3)(VII). The state procedural rule provides that
“[t]he court shall deny any claim that could have been presented in an appeal previously
brought or postconviction proceeding previously brought.” Colo. R. Crim. P.
35(c)(3)(VII). See also People v. Valdez, 178 P.3d 1269, 1275 (Colo. App. 2007);
People v. Vondra, 240 P.3d 493, 494-95 (Colo. App. 2010); accord Turman v.
Buckallew, 784 P.2d 774, 780 (Colo. 1989) (“We have emphasized that where a
post-conviction application is filed, it should contain all factual and legal contentions of
which the applicant knew at the time of filing, and failure to do so will, unless special
circumstances exist, ordinarily result in a second application containing such grounds
being summarily denied.”) (internal quotation marks omitted). Colo. R. Crim. P.
35(c)(3)(VII) is an adequate state procedural ground for rejecting a claim. See Burton v.
Zavaras, No. 09-1094, 340 F. App’x 454-55 (10th Cir. Aug. 4, 2009) (unpublished)
(applying Colorado’s bar against successive claims); Williams v. Broaddus, No. 081254, 331 F. App’x 560, 563 (10th Cir. May 20, 2009) (unpublished).
The Court finds that Mr. Ippolito has procedurally defaulted his federal claims in
the state courts. Further, nothing in Applicant’s pleadings suggests cause for his
procedural default or that a fundamental miscarriage of justice will occur if the Court
does not review the merits of his claims. See Coleman, 501 U.S. at 750; Cummings,
506 F.3d at 1224. Accordingly, it is
ORDERED that the § 2254 Application (ECF No. 26) is DENIED and this action

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is DISMISSED WITH PREJUDICE as procedurally barred. It is
FURTHER ORDERED that no certificate of appealability will issue because
jurists of reason would not debate the correctness of this procedural ruling and Mr.
Ippolito 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 for the purpose of appeal. 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. Ippolito 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.
FURTHER ORDERED that the Motion for Writ of Mandamus (ECF No. 27)
requesting copies of the records maintained by the Defendants is DENIED as moot.
DATED December 23, 2014, at Denver, Colorado.
BY THE COURT:

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

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