Carbajal v. Lynn et al

Filing 28

ORDER dismissing this action, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/9/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02880-GPG
DEAN CARBAJAL,
Applicant,
v.
RANDY LYNN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Dean Carbajal, is a prisoner in the custody of the Colorado
Department of Corrections. Mr. Carbajal has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 or Writ of Error Coram Nobis Pursuant to
28 USC § 1651” (ECF No. 1) (the “Application”) and a “Supplement to Mr. Carbajal’s
Application for a Writ of Habeas Corpus Pursuant to 28 USC § 2254 or Writ of Error
Coram Nobis Pursuant to 28 USC § 1651” (ECF No. 4). Mr. Carbajal asserts one claim
for relief arguing that he was convicted in Montrose County District Court case number
00CR204 in violation of his constitutional right to due process.
On October 29, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to
file a Pre-Answer Response that addresses the jurisdictional question of whether Mr.
Carbajal is in custody for the purposes of the conviction he is challenging as well as 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 intend to raise

those defenses in this action. On December 23, 2014, Respondents filed a corrected
Pre-Answer Response (ECF No. 21) arguing that the Application is untimely and that
Mr. Carbajal has not exhausted state remedies for a federal constitutional claim. With
respect to the jurisdictional question, Respondents contend that Mr. Carbajal’s claim of
current custody arguably is insufficient. On February 5, 2015, Mr. Carbajal filed
“Plaintiff Dean Carbajal’s Response to State’s Pre Answer Response” (ECF No. 24).
On February 6, 2015, Mr. Carbajal filed a motion to amend (ECF No. 25) seeking to
amend page 2 of the Application. On February 13, 2015, Respondents filed a
“Response in Opposition to Motion to Correct Page Two of Application for Writ of
Habeas Corpus” (ECF No. 26) and on March 4, 2015, Mr. Carbajal filed a reply (ECF
No. 27). The motion to amend will be granted.
The Court must construe the Application and other papers filed by Mr. Carbajal
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 action will be dismissed for lack of jurisdiction.
The following description of the relevant factual history is taken from the order of
the Montrose County District Court denying a petition for writ of habeas corpus filed by
Mr. Carbajal:
In 2001 [Mr. Carbajal] had six different felony cases pending
in three counties of the Seventh Judicial District, Delta,
Montrose and San Miguel. As part of a consolidated plea
bargain, he entered Alford pleas on August 30, 2001 to
Possession of a Schedule II Controlled Substance and
Violation of Bail Bond Conditions in the Montrose case,
2000CR204; and Sexual Assault in the Second Degree in
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the Delta case, 99CR96. Mr. Carbajal was sentenced to four
years in the Department of Corrections on the Montrose
case 2000CR204: three years on the Possession charge;
and one year consecutive on the Violation of Bond charge.
He was also sentenced to four years on deferred judgment
and sentence (DJS) consecutive to the Montrose case on
the Delta case 99CR96. The defendant was released from
his DOC sentence in 2000CR204 on July 26, 2004 and his
three year period of parole began.
(ECF No. 4 at 21.) Mr. Carbajal concedes that his sentence in Montrose case number
00CR204 has expired and that he no longer is serving that sentence. (See ECF No. 1
at 1; ECF No. 24 at 4-5; ECF No. 25 at 3.) However, he contends that his sentence in
Montrose case number 00CR204 was used to enhance the prison sentences he
currently is serving as a result of his convictions in Denver District Court case number
10CR3824. Respondents agree that Mr. Carbajal currently is serving sentences
imposed in Denver case number 10CR3824 and that his conviction in Montrose case
number 00CR204 was used to enhance the sentences imposed in Denver case number
10CR3824.
The instant action was commenced on October 22, 2014. Mr. Carbajal claims he
was convicted in Montrose case number 00CR204 in violation of his constitutional right
to due process because his guilty plea was accepted by the Delta County District Court
rather than the Montrose County District Court. According to Mr. Carbajal, the Delta
County District Court lacked jurisdiction to accept his guilty plea and enter judgment
because the formal charging document in Montrose case number 00CR204 was filed in
the Montrose County District Court. As relief Mr. Carbajal asks that his conviction in
Montrose case number 00CR204 be vacated.
The first question the Court must address is whether the Court has jurisdiction to
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consider Mr. Carbajal’s due process claim. The Court has jurisdiction to entertain an
application for habeas corpus relief pursuant to § 2254 only from an applicant who is “in
custody pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); see also
McCormick v. Kline, 572 F.3d 841, 848 (10th Cir. 2009) (“Section 2254’s in-custody
requirement is jurisdictional.”). Furthermore, a prisoner seeking habeas corpus relief
must be in custody pursuant to the conviction or sentence under attack at the time the
habeas corpus application is filed. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989).
It is Mr. Carbajal’s burden to establish that the custody requirement is satisfied. See
United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (stating that a defendant
filing a motion under 28 U.S.C. § 2255 bears the burden of demonstrating jurisdiction by
affirmatively alleging he is in custody).
As noted above, Respondents contend that Mr. Carbajal’s claim of current
custody arguably is insufficient. Mr. Carbajal counters that the Court has jurisdiction to
consider his due process claim because he actually is challenging his sentences in
Denver case number 10CR3824 that were enhanced as a result of his conviction in
Montrose case number 00CR204.
The fact that Mr. Carbajal’s conviction in Montrose case number 00CR204 was
used to enhance the sentences imposed in Denver case number 10CR3824 does not
demonstrate Mr. Carbajal is in custody with respect to his expired sentence in Montrose
case number 00CR204. See Maleng, 490 U.S. at 491 (“In this case, the Court of
Appeals held that a habeas petitioner may be ‘in custody’ under a conviction whose
sentence has fully expired at the time his petition is filed, simply because that conviction
has been used to enhance the length of a current or future sentence imposed for a
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subsequent conviction. We think that this interpretation stretches the language ‘in
custody’ too far.”); Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 401 (2001).
However, Respondents concede, and the Court agrees, that Mr. Carbajal can satisfy
the “in-custody” requirement if the Application is construed as challenging his enhanced
sentences in Denver case number 10CR3824. See Lackawanna, 532 U.S. at 401-02.
The Court does not construe the Application as challenging Mr. Carbajal’s
enhanced sentences in Denver case number 10CR3824 for two reasons. First, Mr.
Carbajal indicates clearly in the Application, even as amended, that the conviction he is
challenging in this habeas corpus action is his conviction in Montrose case number
00CR204. (See ECF No. 1 at 2; ECF No. 25 at 3.) Second, and more importantly, Mr.
Carbajal has filed a separate habeas corpus application directly challenging the validity
of his convictions and sentences in Denver case number 10CR3824. See Carbajal v.
Lynn, No. 14-cv-02926-GPG (D. Colo. filed Oct. 28, 2014). If Mr. Carbajal wants to
pursue a federal constitutional claim challenging the sentences imposed in Denver case
10CR3824, the claim should be raised in conjunction with his other claims challenging
his convictions in Denver case number 10CR3824. He may not challenge the validity of
the same state court convictions and sentences simultaneously in two separate habeas
corpus actions. Therefore, the Court construes the Application as challenging Mr.
Carbajal’s conviction in Montrose case number 00CR204. Because Mr. Carbajal is not
in custody with respect to Montrose case number 00CR204, the Court lacks jurisdiction
to consider the due process claim in the Application.
Finally, Mr. Carbajal argues that the Court has jurisdiction to consider his due
process claim challenging the validity of his conviction in Montrose case number
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00CR204 pursuant to 28 U.S.C. § 1651 if the Application is construed as a petition for a
writ of coram nobis. The Court does not agree. “It has long been settled in this circuit
that federal courts have no jurisdiction to issue writs of coram nobis with respect to state
criminal judgments.” Rawlins v. Kansas, 714 F.3d 1189, 1196 (10th Cir. 2013).
Therefore, even if the Application were construed as a petition for writ of coram nobis,
the Court still lacks jurisdiction.
For these reasons, the action will be dismissed for lack of jurisdiction. The Court
also 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. P. 24. Accordingly, it is
ORDERED that Applicant’s motion to amend (ECF No. 25) is GRANTED. It is
FURTHER ORDERED that the Application (ECF No. 1) is denied and the action
is dismissed for lack of jurisdiction. 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

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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

9th day of

March

, 2015.

BY THE COURT:

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

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