Colborn v. State of Colorado, The et al

Filing 18

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 4/9/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02935-GPG
CHAD COLBORN,
Applicant,
v.
JAMES FALK, Sterling Correctional Facility,
Respondent.

ORDER OF DISMISSAL

Applicant Chad Colborn is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the Sterling Correctional Facility in
Sterling, Colorado. Applicant, acting pro se, initiated this action by filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Applicant also paid the $5
filing fee.
On January 9, 2015, Magistrate Judge Gordon P. Gallagher directed Applicant to
file an Amended Application that complies with Fed. R. Civ. P. 8. Applicant filed the
Amended Application, ECF No. 11, on February 9, 2015. Magistrate Judge Gallagher
reviewed the Amended Application, found Applicant is challenging his return to
Colorado and his subsequent parole revocation, and then directed Respondent to file a
Preliminary Response to the Application that addresses the affirmative defenses of
timeliness and exhaustion of state court remedies.

On March 10, 2015, Respondent filed a Preliminary Response, ECF No. 17.
Applicant has not replied to the Preliminary Response within the time allowed. The
Court, therefore, will proceed to address the affirmative defenses raised by Respondent.
The Court must construe the Application liberally because Applicant is a pro se
litigant. 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 a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the action will be
dismissed.
Applicant contends that he was illegally transported from Oregon to Colorado
and then subjected to a parole revocation. ECF No. 11, at 2. He further contends that
his parole exceeded his original sentence as his mandatory release date was in 2013.
Id. Applicant also contends that the criminal charges he was convicted of, possession
of Schedule Two Narcotics, now is a misdemeanor offense for which he has served
more than a six year sentence. Applicant seeks recomputation and statutory discharge
of his sentence.
The Court finds as follows. On November 22, 2013, Applicant transferred his
Colorado parole supervision to the State of Oregon per the Interstate Compact
Agreement. Prelim. Resp., Ex. B, ECF No. 17-2, at 1. He, subsequently while in
Oregon, was arrested, and charged with menacing, unlawful use of a weapon, and felon
in possession of a restricted weapon. Id. On May 21, 2014, Applicant pled guilty to one
count of unlawful use of a weapon and was sentenced by the Circuit Court of the State
of Oregon for Lane County on May 22, 2014, to thirty-six months of probation. Prelim
Resp., Ex. A, ECF No. 17-1, at 1. When Applicant was notified that he would be

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returned to Colorado, because the new conviction was for a felony charge, Applicant
absconded. ECF No. 17-2, at 2. On June 20, 2014, a Colorado arrest warrant was
issued. Prelim. Resp., Ex. C, ECF No. 17-3. Once Applicant was returned to Colorado,
he was notified of a parole revocation hearing, Prelim. Resp., Ex. D, ECF No. 17-4, a
parole revocation hearing was held on December 12, 2014, and Applicant’s parole was
revoked to the custody of the DOC for the remainder of his sentence, Prelim. Resp., Ex.
E, ECF No. 17-5.
Respondent argues that the Application should be denied because Applicant has
failed to exhaust his state court remedies. ECF No. 17 at 3-6. Respondent has
provided the state court register for both of Applicant’s criminal cases, Case Nos.
2008CR1779 and 2008CR2614, and the search results for appellate court records that
Applicant may have filed. Prelim Resp., Exs. G and H, ECF Nos. 17-7 and 17-8. None
of the records provided by Respondent indicate Applicant has filed a state court action
regarding his recent parole revocation.
A habeas petitioner seeking relief under 28 U.S.C. § 2241 is generally required to
exhaust state remedies. Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) (citing
Coleman v. Thompson, 501 U.S. 722, 731 (1991)). Like other habeas applicants, a §
2241 applicant fulfills the requirement to exhaust state remedies once the issue has
been “fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971);
Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). This requirement “is satisfied if
the federal issue has been properly presented to the highest state court.” Dever v. Kan.
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion requirement is
not one to be overlooked lightly.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir.

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1995). 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).
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, 404 U.S. at 278; see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.
1989). Although fair presentation does not require a habeas corpus applicant 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, 365-66
(1995) (per curiam).
“A state prisoner is generally barred from obtaining federal habeas relief unless
the prisoner has properly presented his . . . claims through one ‘complete round of the
State’s established appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92
(2006) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
Applicant has failed to respond to the affirmative defense raised in this action,
and he fails to demonstrate in the Application that he has fairly presented his claims to
any state court. Therefore, the action will be dismissed for failure to exhaust state
remedies.
Finally, the Court 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

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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 also 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 is denied and the action dismissed without
prejudice for failure to exhaust state court remedies before seeking federal court
intervention. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED April 9, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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