Wu v. Colorado Parole Board

Filing 13

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/22/14. No certificate of appealability shall issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv–02227-BNB
JIN JO WU,

Applicant,
v.
COLORADO PAROLE BOARD,
Respondent.

ORDER OF DISMISSAL

Applicant is a Colorado Department of Corrections (DOC) inmate who is
incarcerated at the Fremont Correctional Facility in Cañon City, Colorado. Applicant
has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF
No. 1, challenging the execution of his sentence by the DOC. Specifically, Applicant
challenges the Parole Board’s determination that he is subject to discretionary parole
and not mandatory parole and, therefore, is unable to have his earned time and good
time credits applied against his mandatory release date. Applicant contends that the
Parole Board has denied his release five times since February 10, 2010, which is his
mandatory parole release date. Applicant has paid the $5 filing fee.
On August 12, 2014, Magistrate Judge Boyd N. Boland directed Respondent to
file a preliminary response addressing the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and/or exhaustion of state court remedies. Respondent submitted a
preliminary response on September 10, 2014. Applicant filed a Reply on September 29,
2017, and a Supplemental Response on October 3, 2014.
The Court must construe liberally the Application, Reply, and Supplemental

Response because Applicant 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 act as 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 as
unexhausted.
Applicant filed a habeas corpus action in the Fremont County District Court on
February 26, 2014, raising the same issues he raises here. See Prelim. Resp., ECF
No. 10-3, Ex. C. The state habeas action was denied on May 19, 2014. Id., ECF No.
10-6, Ex. D, at 4-5. Applicant filed a notice of appeal on July 8, 2014, in the Colorado
Supreme Court (CSC). Id., ECF No. 10-6, Ex F. On August 25, 2014, Applicant filed a
motion in the Colorado Court of Appeals (CCA) to transfer jurisdiction of his appeal from
the CCA to the CSC. Id., ECF No. 10-7,
Ex. G.
Respondent contends that Applicant has failed to exhaust state remedies
because he has a pending petition in the CCA.
In his Reply, Applicant asserts that it would be a miscarriage of justice for this
Court to not entertain his claim that he has been illegally detained for over five years.
Reply, ECF No. 11, at 4. In the Supplemental Response, Applicant further asserts that
it is futile for him to exhaust his state remedies because he did not timely pursue his
claim pursuant to Colo. Rev. Civ. P. 106 and he now is time barred from raising his
constitutional claim. Supp. Resp., ECF No. 12, at 1-2.
Normally, an applicant may challenge the denial of his parole application in
federal court without first seeking review of the parole board’s decision in the Colorado
state courts, see Wildermuth v. Furlong, 147 F.3d 1234, 1235 n.1 (10th Cir. 1998); see
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also White v. People, 866 P.2d 1371, 1373 (Colo. 1994) (noting that claims alleging an
abuse of discretion by the parole board are not subject to judicial review in Colorado
state courts). However, this Court will defer consideration of Applicant’s claims as a
matter of comity. See Huffman v. Pursue, Ltd., 420 U.S. 592, 603 (1975) (extending the
Younger v. Harris, 401 U.S. 37 (1971), abstention doctrine to civil proceedings).
The Court further finds that Applicant’s arguments lack merit. Applicant is not
time barred from raising his mandatory parole claim at least with respect to his parole
hearing in 2014.
A challenge to a parole board’s denial of parole is properly brought under 28
U.S.C. § 2241, and the one-year time limitation under § 2244(d) applies. See Durre v.
Zenon, 116 F. App’x 179, 180 (10th Cir. 2004) (citing Burger v. Scott, 317 F.3d 1133,
1138 (10th Cir. 2003)). Relevant here is subsection (d)(1)(D) which says the statute of
limitations shall run from “the date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of due diligence.” 28
U.S.C. § 2244(d)(1)(D).
Applicant asserts that he has been denied parole five times since February 2010,
but he does not provide specific dates when his parole was denied. He appears to be
challenging a parole board decision prior to February 26, 2014, however, which is the
date his habeas petition was filed in the Fremont County District Court. See Prelim
Resp., ECF No. 10-3. According to the DOC’s website, Applicant’s parole eligibility date
was March 11, 2009. See http://www.doc.state.co.us/oss/.
Because the dates when Applicant was denied mandatory parole between 2009
and 2013 are unknown, and it also is not known whether Applicant pursued state court
remedies concerning those denials, the Court is unable to determine whether the time
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was tolled concerning those denials. Regardless, Applicant’s challenge of the
mandatory parole hearing in 2014 is not time barred.
Nor is exhaustion of state court remedies futile. The Fremont County District
Court denied the habeas petition on the merits, and Applicant has an appeal of that
denial pending in either the CCA or the CSC. A state rule of procedure barring
Applicant’s claim, including failure to file a timely Colo. R. Civ. P. 106 petition, must be
respected until Applicant can show either that (1) good cause for his failure to meet its
demands “and actual prejudice as a result of [his] alleged violation of federal law” or (2)
“failure to consider [his] claims will result in a fundamental miscarriage of justice.”
Magar, 490 F.3d at 819. Applicant’s miscarriage of justice claim is speculative. His
appeal has not been denied based on untimeliness. Furthermore, even if a state court
dismisses his appeal as untimely, Applicant is not precluded from filing a § 2241 action
in this Court so long as the action is timely under 28 U.S.C. § 2244(d).
Based on comity, this action should be dismissed because Applicant has an
appeal pending in state court. Furthermore, in any future § 2241 actions challenging his
parole hearings, Applicant must identify the date of the parole hearing being challenged.
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
this Order is not 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 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 Application, ECF No. 1, is denied and the action is dismissed
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without prejudice because Applicant has an appeal pending in state court regarding his
denial of mandatory parole. It is
FURTHER ORDERED that no certificate of appealability shall issue because
Applicant has not made a substantial showing that jurists of reason would find it
debatable whether the procedural ruling is correct and whether the underlying claim has
constitutional merit. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED October 22, 2014, at Denver, Colorado.
BY THE COURT:

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

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