Hands v. Willson et al

Filing 14

ORDER TO FILE A SUPPLEMENT TO THE PRELIMINARY RESPONSE by Magistrate Judge Gordon P. Gallagher on 5/28/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-00241-GPG
JUSTIN HANDS,
Applicant,
v.
JAMES FALK,
Respondent.

ORDER TO FILE A SUPPLEMENT TO THE PRELIMINARY RESPONSE

Applicant, Justin Hands, is in the custody of the Colorado Department of
Corrections in Sterling, Colorado. He has filed, pro se, an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and has paid the $5.00 filing
fee (ECF No. 7). In his habeas application, Mr. Hands challenges the revocation of his
parole and the fact that he never received a parole revocation hearing. Mr. Hands
requests that he be released from the Colorado Department of Corrections and continue
his parole or be provided a parole revocation hearing which was denied to him.
On April 1, 2015, Magistrate Judge Gordon P. Gallagher issued an Order (ECF
No. 8) directing Respondent to file a preliminary response limited to addressing the
affirmative defenses of timeliness under 28 U.S.C. 2244(d) and/or exhaustion of state
court remedies. Respondent filed his Preliminary Response on April 22, 2015 asserting
that Mr. Hands has failed to exhaust his state court remedies. (ECF No. 11). Mr. Hands
filed a Reply on May 11, 2015. (ECF No. 12).
In his Preliminary Response, Respondent argues that “[i]n light of the importance

of the State’s interest in enforcement of its procedures concerning habeas corpus, and
the proper use of the courts in Colorado, those interests would best be served by
requiring Hands to exhaust his state remedies by complying with Colorado’s procedural
rules.” (ECF No. 11 at 5). However, even if Mr. Hands failed to exhaust state court
remedies for his claim, the Court may not dismiss the claim for failure to exhaust if he
no longer has an adequate and effective state remedy available to him. See Castille v.
Peoples, 489 U.S. 346, 351 (1989); Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007)
(quoting 28 U.S.C. § 2254(b)(1)).
Respondent failed to address whether Mr. Hands currently has an adequate and
effective state remedy available to him. Additionally, Respondent failed to address
whether Mr. Hands is subject to anticipatory procedural default of his claim.
Anticipatory procedural default applies if it is clear that the claim would be rejected
because of an independent and adequate state procedural rule. See Coleman v.
Thompson, 501 U.S. 722, 735 n.1 (1991).
As a general rule, this Court will "not review issues that have been defaulted in
state court on an independent and adequate state procedural ground, unless the default
is excused through a showing of cause and actual prejudice or a fundamental
miscarriage of justice." Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir. 1998); see
Medlock v. Ward, 200 F.3d 1314, 1322-23 (10th Cir. 2000).
Accordingly, Respondent is ordered to file a Supplement to the Preliminary
Response limited to the issues of whether Mr. Hands has an adequate and effective
state remedy available to him and/or whether he has procedurally defaulted his claims.
The Supplement to the Preliminary Response should be filed within twenty-one (21)

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days of the date of this Order.
Additionally, Mr. Hands will have an additional twenty-one (21) days from the
date the Supplement to the Preliminary Response is filed to file a Reply. Accordingly, it
is
ORDERED that the Respondent file a Supplement to the Preliminary Response
within twenty-one (21) days from the date of this order limited to the issues of whether
Applicant has an adequate and effective state remedy available to him and/or whether
he has procedurally defaulted his claim. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the
Supplement to the Preliminary Response, Applicant may file a Reply if he so wishes.
DATED May 28, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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