Kinney v. Raemisch, et al

Filing 22

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 1/16/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02893-GPG
ANTHONY T. KINNEY,
Applicant,
v.
RICK RAEMISCH, Executive Director CDOC,
E. DIGGINS, Denver Sheriff, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER OF DISMISSAL

Applicant, Anthony T. Kinney, has filed pro se an amended Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 9) challenging the execution
of his state sentence and his detention at the Denver County Jail. On November 6,
2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a preliminary
response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. §
2244(d) and exhaustion of state remedies if Respondents intend to raise either or both
of those defenses in this action. On November 25, 2014, Respondents Rick Raemisch
and The Attorney General of the State of Colorado, through their counsel, filed a
Preliminary Response (ECF No. 19) arguing that the action should be dismissed for
failure to exhaust state court remedies.1 On December 4, 2014, Mr. Kinney filed a
document titled “Preliminary Response” (ECF No. 21) in reply to Respondents’

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On November 28, 2104, Respondent E. Diggins filed, through his counsel, a
“Joinder in Preliminary Response of the State Respondents to Application for Writ of
Habeas Corpus” (ECF No. 20).

Preliminary Response.
The Court must construe the amended Application and other papers filed by Mr.
Kinney 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 without
prejudice for failure to exhaust state remedies.
Mr. Kinney asserts two claims in the amended Application. In claim one, he
contends that the Department of Corrections failed to apply 15 days of good time for
every 10 days of earned time that he received. He alleges that due to the failure to
apply these credits, he is being illegally incarcerated because his sentence would be
discharged. Mr. Kinney also asserts a due process claim contending that the failure to
apply good time credits resulted in delay of his parole board hearings and a longer
period of incarceration. As relief, Mr. Kinney asks that the good and earned time credits
he should have received be applied against his remaining parole term.
Judicial review of the execution of a sentence is governed by § 2241. Caravalho
v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1989). A federal court may only grant habeas
corpus relief when a state prisoner is “in custody in violation of the constitution, laws, or
treaties of the United States.” 28 U.S.C. § 2241(c). Federal courts do not possess
supervisory authority over state judicial proceedings; they may only intervene to correct
violations of federal law. See, e.g., Smith v. Phillips, 455 U.S. 209, 211 (1982). Review
of habeas corpus actions under § 2241 is governed by 28 U.S.C. § 2243, which vests
the Court with the authority to decide the case as a matter of law. See 28 U.S.C. §
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2243; Watts v. Hadden, 489 F. Supp. 987, 989 (D. Colo. 1980), aff’d 651 F.2d 1354
(10th Cir. 1981).
Mr. Kinney may not pursue his claims in federal court in a habeas corpus action
unless he has exhausted state court remedies. See Montez v. McKinna, 208 F.3d 862,
866 (10th Cir. 2000) (“A habeas petitioner is generally required to exhaust state
remedies whether his action is brought under § 2241 or § 2254.”). 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
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
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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. Kinney alleges in the amended Application that he has exhausted state
remedies by grieving the issue and trying to file a civil suit in the Denver County District
Court. In his Reply, Mr. Kinney further alleges that he has followed the administrative
grievance process. He also admits that he recently filed a complaint pursuant to Rule
106 of the Colorado Rule of Civil Procedure in the state courts “to cover all grounds.”
According to the documentation provided by Respondents, Mr. Kinney has filed three
Rule 106 complaints alleging that he has not been awarded either good time or earned
time to which he believed he was entitled, including El Paso County Case No. 14cv168,
El Paso County Case No. 14cv457, and El Paso County Case No. 14cv461. Case No.
14cv168 was dismissed and the other two cases are currently pending. In his Reply,
Mr. Kinney argues that exhaustion is not a statutory or jurisdictional requirement for
habeas petitions filed under § 2241. (See ECF No. 21 at 1-3.)
The Court is not persuaded that Mr. Kinney has satisfied his burden of showing
he has exhausted state remedies. He fails to demonstrate that he has fairly presented
his claims to the Colorado Supreme Court or that no adequate state remedies are
available. Furthermore, the documentation provided by Respondents with their
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Preliminary Response indicates that Mr. Kinney has not fairly presented any of his
claims in this action to the Colorado Court of Appeals and the Colorado Supreme Court.
Therefore, the action will be dismissed for failure to exhaust state remedies.
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.
P. 24. Accordingly, it is
ORDERED that the amended habeas corpus application (ECF No. 9) is denied
and the action is dismissed without prejudice for failure to exhaust state remedies. 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

16th

day of

January

, 2015.

BY THE COURT,

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

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