Betts v. State of Colorado et al

Filing 17

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03365-GPG
TERRY BETTS,
Applicant,
v.
STATE OF COLORADO,
JASON LENGRICH, Warden,
Respondents.

ORDER OF DISMISSAL

Applicant, Terry Betts, is in the custody of the Colorado Department of
Corrections at the Centennial Correctional Facility in Canón City, Colorado. Mr. Betts
initiated this action by filing a Prisoner Complaint. Upon review of the pleading,
Magistrate Judge Gallagher determined that Mr. Betts was attempting to challenge the
execution of his state court sentence. Magistrate Judge Gallagher informed Mr. Betts,
in a December 15, 2014 Order (ECF No. 5), that his claims must be asserted in a
habeas corpus application pursuant to § 2241. See Montez v. McKinna, 208 F.3d 862,
865 (10th Cir. 2000); see also United States v. Furman, 112 F.3d 435, 438 (10th
Cir.1997) (noting that issues concerning “parole procedure[ ] go to the execution of
sentence and, thus, should be brought against defendant's custodian under 28 U.S.C.
§ 2241”). Magistrate Judge Gallagher instructed Mr. Betts to submit his claims in an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, within 30 days of
the December 15 Order. (Id.). Mr. Betts filed his § 2241 Application on December 23,

2014. (ECF No. 7). He has been granted leave to proceed in forma pauperis pursuant
to 28 U.S.C. § 1915.
In the Application, Mr. Betts challenges the legality of his parole revocation. He
states that his parole was revoked on September 28, 2014, pursuant to an alleged “self
revocation,” and that the Colorado Parole Board denied his administrative appeal on
November 7, 2014. He claims that the coerced self-revocation of his parole by his
parole officer violated due process and that he should have been afforded a hearing to
determine his competency to self-revoke. Mr. Betts seeks immediate release from
custody.
On January 6, 2015, Magistrate Judge Gallagher ordered the Respondents to
file, within 21 days, a Preliminary Response to the Application, addressing the potential
applicability of the affirmative defenses of timeliness and failure to exhaust state court
remedies. (ECF No. 10). After obtaining an extension of time, Respondents filed a
Preliminary Response on February 3, 2015. (ECF No. 16). Mr. Betts did not file a
Reply to the Preliminary Response by the court-ordered deadline.
In the Preliminary Response, Respondents argue that Applicant failed to exhaust
available state remedies for his claims. (ECF No. 16, at 3-4). The state court
documents attached to the Preliminary Response reflect that Mr. Betts challenged his
parole revocation in Mesa County District Court Case No. 09CR249, by filing a motion
for state post-conviction relief, pursuant to Colo. Crim. P. Rule 35(c)(VII), on January 5,
2015. (ECF No. 16-1, at 24). That motion was pending as of February 3, 2015, when
Respondents filed the Preliminary Response.
A state prisoner must exhaust available state court remedies prior to seeking
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federal habeas corpus relief under 28 U.S.C. § 2241. See Montez, 208 F.3d at 866.
“The exhaustion requirement is satisfied if the issues have been ‘properly presented to
the highest state court, either by direct review of the conviction or in a postconviction
attack.’” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir.1999) (quoting Dever v. Kan.
State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994)); see also Castille v. Peoples,
489 U.S. 346, 351 (1989). Where a petitioner has not exhausted his state remedies,
“[g]enerally, a federal court should dismiss unexhausted claims without prejudice so that
the petitioner can pursue available state-court remedies.” Bland v. Sirmons, 459 F.3d
999, 1012 (10th Cir. 2006). A habeas petitioner bears the burden of demonstrating that
he has satisfied the exhaustion requirement. McCormick v. Kline, 572 F.3d 841, 851
(10th Cir. 2009) (internal citation omitted).
Mr. Betts’ administrative appeal to the Colorado Parole Board did not satisfy the
requirement that he exhaust available state court remedies. And, even if the state
district court has now ruled on Applicant’s Rule 35(c) motion, he must appeal any
adverse ruling to the Colorado Court of Appeals. Accordingly, Mr. Betts has not
exhausted his available state court remedies and he has otherwise failed to
demonstrate that he is not required to satisfy the exhaustion requirement under the
circumstances of this case. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 7) and this action are DISMISSED WITHOUT PREJUDICE for
failure to exhaust state court remedies. 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. Betts
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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. Betts 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.
DATED March 3, 2015, at Denver, Colorado.
BY THE COURT:

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

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