Fields v. Johnson

Filing 19

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/2/14. No certificate of appealability will issue, and Applicant's Motion of 'Confirmation' to Exercise his Rights in Challenging the Respondent's Legal Authority and Jurisdiction to Restrain the Applicant Under a Void Sentence, Pursuant to Habeas Corpus Pleadings 28 U.S.C. § 2241 is denied. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01569-BNB
TROY LAMONTE FIELDS,
Applicant,
v.
DAVID JOHNSON, Warden of Denver Reception Diagnostic Center,
Respondent.

ORDER OF DISMISSAL

Applicant, Troy Lamonte Fields, is a prisoner in the custody of the Colorado
Department of Corrections incarcerated at the Denver Reception and Diagnostic
Center. Mr. Fields has filed pro se an amended Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 5) asserting that he is being detained unlawfully
because the state district court corrected his illegal sentence without giving him or his
counsel notice of the “resentencing” and failed to issue a new paper mittimus after the
new sentence was imposed. On July 17, 2014, Magistrate Judge Boyd N. Boland
entered an order directing Respondent to file a pre-answer response limited to
addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and
exhaustion of state remedies if Respondent intends to raise either or both of those
defenses in this action. In the July 17 Order, Magistrate Judge Boland also found that it
appeared that Mr. Fields was challenging the validity of his sentence for his conviction
in Denver County District Court case number 94CR940 and construed the Application
as asserted pursuant to 28 U.S.C. § 2254.

On August 1, 2014, Applicant submitted a motion (ECF No. 15) stating that he is
challenging Respondent’s legal authority to detain him under a void sentence and illegal
mittimus pursuant to 28 U.S.C. § 2241. On September 4, 2014, Respondent filed a PreAnswer Response (ECF No. 18) arguing that the action should be dismissed for failure
to exhaust state remedies. Respondent contends that Mr. Fields has not presented his
claims to the Colorado state courts in a petition for writ of habeas corpus or in any other
state court proceeding. Respondent further contends that the claims are procedurally
defaulted. Despite being given the opportunity to file a reply, Mr. Fields did not do so.
The Court must construe the Amended Application and other papers filed by Mr.
Fields 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.
In 1995, Mr. Fields was convicted of second degree burglary, theft, aggravated
motor vehicle theft, and vehicular eluding. (ECF No. 18-1 at 23.) He was found to be a
habitual criminal and sentenced to an aggregate prison term of sixty years. (Id. at 2324.) The Colorado Court of Appeals affirmed, and on September 2, 1997, the Colorado
Supreme Court denied certiorari. (Id. at 17; ECF No. 18-2.)
Starting in December 1997, Mr. Fields filed numerous motions for postconviction
relief in the Colorado state courts. (See ECF No. 18-1 at 9-17.) All of the motions have
been denied. (Id.) On September 12, 2013, Mr. Fields filed a letter asking the state
district court to correct his sentence. (Id. at 9.) On December 11, 2013, the court
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issued an order correcting Mr. Field’s sentence but reimposing the same aggregate
sixty-year sentence. (Id.) On February 18, 2014, the state court amended the mittimus
“to reflect a total of 60 years DOC.” (Id. at 8.) Mr. Fields then filed on March 3, 2014,
March 27, 2014, and May 5, 2014, three motions for postconviction relief challenging his
sentence. (ECF No. 18-1 at 7.) All motions have been denied, and Mr. Fields has not
appealed. (Id.)
On June 3, 2014, Mr. Fields initiated the instant action. On June 30, 2104, he
filed an Amended Application challenging his “new” sentence imposed on December 11,
2013. Specifically, Mr. Fields asserts that the Colorado Department of Corrections
lacks jurisdiction to detain him because the state district court failed to issue a new
paper mittimus after his sentence was corrected.
It is not clear to the Court whether Mr. Fields is challenging the validity of his
corrected sentence or the execution of his sentence. Regardless of whether the claims
are asserted pursuant to § 2241 or § 2254, Mr. Fields must exhaust state court
remedies before he may pursue those claims in a habeas corpus action in this Court.
See Montez v. McKinna, 208 F.3d 862, 865-66 (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 Cir. 1994).
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
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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. Fields concedes that he has not presented his claims in state court. (See
ECF No. 5 at 5-6.) Moreover, Mr. Fields has filed three motions for postconviction relief
in the state court relevant to the December 11, 2013 correction of his sentence, and
none have raised the claims in question in the instant action. Moreover, there is no
indication that any of Mr. Fields habeas claims have been raised in the Colorado
appellate courts, and his time to file an appeal has expired.
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Mr. Fields has failed to satisfy his burden of demonstrating that he has exhausted
state remedies. He fails to demonstrate that he has fairly presented his claims to the
Colorado state courts. Furthermore, the documentation provided by Respondent with
the Pre-Answer Response indicates that Mr. Fields has not fairly presented any of his
claims in this action to the Colorado state courts.
Although Mr. Fields failed to exhaust state court remedies for his claims, the
Court may not dismiss the claims for failure to exhaust state remedies if he no longer
has an adequate and effective state remedy available to him. See Castille, 489 U.S. at
351. No further state court remedy exists because any future claim would be denied as
successive under Colo. R.Crim. P. 35(c)(3) because it could have been presented in an
appeal or postconviction proceeding previously brought. See Colo. R.Crim. P.
35(c)(3)(VII). Therefore, the Court finds that the claims are procedurally defaulted.
Mr. Fields fails to demonstrate either cause or prejudice for his procedural
default. He also fails to demonstrate that a failure to consider his claims will result in a
fundamental miscarriage of justice because he fails to present any new reliable
evidence that demonstrates he is actually innocent. As a result, the unexhausted
claims will be dismissed as procedurally barred.
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
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.
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P. 24. Accordingly, it is
ORDERED that the amended habeas corpus application (ECF No. 5) is denied
and the action is dismissed because the claims are procedurally barred . It is
FURTHER ORDERED that “Applicant’s Motion of ‘Confirmation’ to Exercise his
Rights in Challenging the Respondent’s Legal Authority and Jurisdiction to Restrain the
Applicant Under a Void Sentence, Pursuant to Habeas Corpus Pleadings 28 U.S.C. §
2241" (ECF No. 15) 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. 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

2nd

day of

October

, 2014.

BY THE COURT:

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

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