Anderson et al v. Lengerich

Filing 15

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/13/15. No certificate of appealability will issue, and 12 Motion for Leave to File Exhibit A-2 in Support of Respondents' Amended Preliminary Response (Doc. 9) as a Level 2 Restricted Document is granted. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02563-GPG
ANTHONY ANDERSON,
Applicant,
v.
RICK RAEMISCH, Executive Director of CDOC,
WARDEN LENGERICH, Buena Vista Correctional Facility,
Respondents.

ORDER OF DISMISSAL

Applicant, Anthony Anderson, is in the custody of the Colorado Department of
Corrections (CDOC) and is incarcerated at the correctional complex in Buena Vista,
Colorado. Mr. Anderson has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241. (ECF No. 1). He has been granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915.
On September 17, 2014, Magistrate Judge Boland directed the Respondents to
file a Preliminary Response addressing the affirmative defenses of failure to exhaust
state court and administrative remedies, and the timeliness of the Application.
Respondent filed a Preliminary Response on October 8, 2014 asserting the affirmative
defense of failure to exhaust state court remedies. (ECF No. 7). On October 9, 2014,
Magistrate Judge Boland directed Respondents to amend the Preliminary Response to
include documentation relevant to the exhaustion issue. (ECF No. 8). Respondents
submitted an Amended Preliminary Response on October 28, 2014. (ECF No. 9; see

also restricted document, ECF No. 10). Applicant thereafter filed a Reply to the
Preliminary Response on November 24, 2014. (ECF No. 14).
The Court must construe the Application liberally because Mr. Anderson 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 § 2241 Application will be dismissed.
Mr. Anderson alleges in the Application that he “was notified that after he had
served approximately 5 years (on a 48 year sentence) that all the accumulated earn
time he was awarded would now be taken pur. to CDOC Administrative Regulation 55004 and . . . C.R.S. § 17-22.5-403(3).” (ECF No. 1, at 1). Applicant was informed by
prison officials that although his current crimes are not considered “violent,” his prior
offenses are “violent,” as reflected by statements made in the pre-sentence report. Mr.
Anderson alleges that the police arrest report and trial transcripts demonstrate that he
did not use or possess a weapon for his prior offenses. According to Applicant, the
CDOC has concluded, based on its erroneous application of C.R.S. § 17-22.5-403(3),
that he “must serve at least 75% of his time before being eligible for parole” (ECF No. 1,
at 5), instead of being parole eligible upon service of 50% of his sentence. For relief, he
asks that the Court order his earned time credits restored; that the CDOC correct the
factual errors in his pre-sentence report; and, declare that AR 55-04 and C.R.S. § 1722.5-403(3) do not apply to him.

I. Exhaustion of State Court Remedies
2

Respondents argue in the Amended Preliminary Response that Mr. Anderson
has failed to exhaust available state court remedies for his claims challenging the
CDOC’s calculation of his parole eligibility date. (ECF No. 9).
A habeas petitioner under § 2241 is required to exhaust both state court and
administrative remedies. Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002); Montez
v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). The petitioner “must have first fairly
presented the substance of his federal habeas claim to state courts.” Hawkins v. Mullin,
291 F.3d 658, 668 (10th Cir. 2002); Picard v. Connor, 404 U.S. 270, 278 (1971) (“Fair
presentation” requires that the “substance of a federal habeas corpus claim” must have
been presented to the state courts.). The exhaustion requirement is satisfied if the
petitioner presents 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). “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 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).
Respondents contend that Applicant has an available state court remedy in the
context of both a mandamus action under Colo. R. Civ. P. 106(a)(2), and a declaratory
judgment action under Colo. R. Civ. P. 57. See Koucherik v. Zavaras, 940 P.2d 1063,
1064 (Colo. App. 1996) (declaratory judgment); Outler v. Norton, 934 P.2d 922, 924-26
(Colo. App. 1997) (mandamus), overruled on other grounds; Meredith v. Zavaras, 954
3

P.2d 597, 603 (Colo. 1998); Busch v. Gunter, 870 P.2d 586, 587-88 (Colo. App. 1993)
(declaratory judgment); Hill v. Colorado Dep’t of Corr., No. 08CA2522 (Colo. App. Aug.
26, 2010) (unpublished) (mandamus and declaratory judgment) (See ECF No. 9-1).
Mr. Anderson concedes that he did not challenge the CDOC’s calculation of his parole
eligibility date pursuant to Colo. R. Civ. P. 106(a)(2), or file a declaratory judgment
action under Colo. R. Civ. P. 57. (See generally ECF No. 14). Further, it appears that
this relief is available to him to challenge the CDOC’s calculation of his parole eligibility
date. See Hill (ECF No. 9-1, at 12-13) (recognizing that claims challenging the CDOC’s
calculation of a parole eligibility date, based on C.R.S. § 17-22.5.403, may be asserted
in a mandamus action or a declaratory judgment action) (collecting cases).
Applicant asserts that he satisfied the exhaustion requirement by filing a motion
to correct records in his state criminal action, in which he asserted that he was being
denied earned– and good–time credits because of factual errors in his pre-sentence
report, which allowed the CDOC “to use [C.R.S.] 17-22.5-403(3) against him.” (ECF
No. 14, at 2). The Colorado Court of Appeals affirmed the trial court’s order denying the
motion on the ground that Applicant’s “challenge to the denial of earned time credit is
not cognizable in the context of a criminal case because it challenges the actions of the
DOC, no the sentence imposed by the trial court.” (Id. at 5).
The Court finds that Mr. Anderson has failed to exhaust all available state court
remedies. See Castille v. Peoples, 489 U.S. 346, 351 (1989) (presenting a claim to the
state courts 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” does not
constitute “fair presentation.”) (internal citations omitted). However, even if Mr.
4

Anderson had exhausted his state court remedies, he does not demonstrate a colorable
claim for relief under § 2241.
II. Right to Federal Habeas Relief
Colorado law expressly authorizes the DOC to “withhold” or “withdraw” any
“earned time deduction[s]” for inmates who were sentenced for crimes committed on or
after July 1, 1985. C.R.S. § 17.22.5-302(4). Mr. Anderson’s allegations indicate that
he was sentenced for his current offense after July 1, 1985. Accordingly, under
Colorado law, any earned time deductions that Mr. Anderson receives do “not vest upon
being granted and may be withdrawn [by the CDOC] once they [are] granted.” Id.
Because the award of earned-time credits to Applicant is within the discretion of prison
officials, he does not have a constitutionally protected liberty interest in earned-time
credits. See Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006). As such, even
assuming that the CDOC deducted earned-time credits as a result of classifying him
improperly as a violent offender, Mr. Anderson cannot establish a violation of the United
States Constitution that would entitled him to federal habeas corpus relief. See 28
U.S.C. § 2241(c)(3) (stating that “[t]he writ of habeas corpus shall not extend to a
prisoner unless– . . . [h]e is in custody in violation of the Constitution or laws or treaties
of the United States.”).
Further, in Colorado, earned-time credits do not count as service of an inmate's
sentence, see Rather v. Suthers, 973 P.2d 1264, 1266 (Colo.1999), but instead function
only to establish parole eligibility, see Jones v. Martinez, 799 P.2d 385, 387-88 and n.5
(Colo.1990) (collecting cases). Cf. Thiret v. Kautzky, 792 P.2d 801, 805-07 (Colo.1990)
(recognizing an exception for inmates sentenced to a crime committed after July 1,
5

1979, but before July 1, 1985, who are normally entitled to mandatory, not discretionary,
parole (except for sex offenders)). Therefore, even if Mr. Anderson was awarded all of
the earned time credits to which he claims an entitlement, he would not be assured
immediate or speedier release. See Kailey v. Price, No. 12-1276, 497 F. App’x 835,
836-37 (10th Cir. Sept. 27, 2012) (unpublished) (citing Boutwell v. Keating, 399 F.3d
1203, 1209 (10th Cir. 2005) (“[H]abeas corpus is the only avenue for a challenge to the
fact or duration of confinement, at least when the remedy requested would result in the
prisoner's immediate or speedier release from that confinement.”) (emphasis in original
omitted); see also Frazier v. Jackson, No. 09-1429, 385 F. Appx. 808, 810-11 (10th Cir.
2010) (unpublished) (“An application for habeas relief may be granted only when the
remedy requested would result in the prisoner's immediate or speedier release from
confinement.”). Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1), filed by Applicant, Anthony Anderson, on September 16,
2014, is DENIED and this action is DISMISSED. It is
FURTHER ORDERED that no certificate of appealability will issue because
jurists of reason would not debate the correctness of the procedural ruling and Mr.
Anderson 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. Anderson files a notice of
appeal he must also pay the full $505 appellate filing fee or file a motion to proceed in
6

forma pauperis in the United States Court of Appeals for the Tenth Circuit within thirty
days in accordance with Fed. R. App. P. 24. It is
FURTHER ORDERED that the Motion for Leave to File Exhibit A-2 in Support of
Respondents’ Amended Preliminary Response (Doc. 9) as a Level 2 Restricted
Document (ECF No. 12) is GRANTED based on Respondents’ representations that the
state courts require the Colorado Access Database record (filed as a restricted
document in ECF No. 10) to be kept confidential.
DATED January 13, 2015. at Denver, Colorado.
BY THE COURT:

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

7