Hands v. Willson et al

Filing 20

ORDER dismissing this action with prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 8/19/15. (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 OF DISMISSAL

Applicant, Justin Hands, initiated this action while he was in the custody of the
Colorado Department of Corrections in Sterling, Colorado, by filing pro se an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 5). In the
Application, Mr. Hands challenges the revocation of his parole and the fact that he
never received a parole revocation hearing. On April 22, 2015, Respondent filed a
Preliminary Response (ECF No. 11) asserting that Mr. Hands failed to exhaust his state
court remedies. On May 11, 2015, Mr. Hands filed a reply (ECF No. 12). On May 28,
2015, the Court ordered Respondent to supplement the Preliminary Response to
address whether “Mr. Hands has an adequate and effective state remedy available to
him,” and if so, “whether he has procedurally defaulted his claims.” (See ECF No. 14).
On June 3, 2015, Mr. Hands filed a notice of change of address and advised the
Court that he now resides in Aurora, Colorado. (See ECF No. 15.) On June 18, 2015,
Respondent informed the Court, in its Supplement to the Preliminary Response (ECF

No. 18) that Mr. Hands is no longer incarcerated within the Colorado Department of
Corrections because he reached his statutory discharge date and was discharged on
May 29, 2015. Respondent also asserted that Mr. Hands’ claim was both procedurally
defaulted and moot. On July 23, 2015, Magistrate Judge Gordon P. Gallagher ordered
Mr. Hands to show cause why his Application should not be denied as moot because he
has been released from custody and, therefore, there is no longer an actual controversy
regarding his parole revocation. (See ECF No. 19). Mr. Hands has not filed any
response within the time permitted by the Order to Show Cause.
The Court must construe the Application and other papers filed by Mr. Hands
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.
In the Application, Mr. Hands asserts that he was denied due process in
connection with the revocation of his parole in December 2014. As relief, Mr. Hands
seeks immediate release from prison and to “continue his parole in the custody of the
Division of Adult Parole and Community Corrections.” (See ECF No. 5 at 6).
In the Supplement to the Preliminary Response (ECF No. 18), Respondent
argues that Mr. Hands did not exhaust state remedies and procedurally defaulted his
claim, and that his claim is now moot because of his release from custody. Under
Article III of the Constitution, federal courts may only adjudicate live controversies. See
Alvarez v. Smith, 558 U.S. 87, 92 (2009); see also McClendon v. City of Albuquerque,
100 F.3d 863, 867 (10th Cir. 1996) (“Mootness is a threshold issue because the
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existence of a live case or controversy is a constitutional prerequisite to federal court
jurisdiction.”). Furthermore, an “actual controversy must be extant at all stages of
review, not merely at the time the complaint is filed.” Alvarez, 558 U.S. at 92 (internal
quotation marks omitted).
A case becomes moot if an event occurs during the pendency of the action that
“makes it impossible for the court to grant any effectual relief whatever to a prevailing
party.” Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (internal quotation
marks omitted); see also Kan. Judicial Review v. Stout, 562 F.3d 1240, 1245 (10th Cir.
2009) (“If, during the pendency of the case, circumstances change such that the
plaintiff’s legally cognizable interest in a case is extinguished, the case is moot, and
dismissal may be required.”) “It has long been settled that a federal court has no
authority to give opinions upon moot questions or abstract propositions, or to declare
principles or rules of law which cannot affect the matter in issue in the case before it.”
Church of Scientology, 506 U.S. at 12 (internal quotation marks omitted).
It is clear that Mr. Hands’ claim challenging the revocation of his parole in
December 2014 is moot. Once Mr. Hands was released from custody on May 29, 2015,
he no longer had a redressable injury arising from the revocation of his parole in
December 2014. See e.g., Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th Cir. 1986)
(per curiam) (dismissing appeal as moot because the petition challenged only
determinations that delayed defendant’s parole date and he already had been released
on parole). As a result, “the best this court could do for him would be to declare [in an
advisory opinion] that he spent longer in prison than he should have,” which is not
enough to satisfy Article III. Rhodes v. Judiscak, 676 F.3d 931, 935 (10th Cir. 2012); see
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also Spencer v. Kemna, 523 U.S. 1, 18 (1998) (stating that the federal courts “are not in
the business of pronouncing that past actions which have no demonstrable continuing
effect were right or wrong.”). Similarly, once Mr. Hands was released from custody in
May 2015, he no longer had a redressable injury arising from the revocation of his
parole in December 2014.
Applicant could avoid dismissal of his claim challenging the parole proceedings
as moot by establishing the existence of continuing collateral consequences as a result
of the revocation of parole in December 2014. See Spencer, 523 U.S. at 7-8. However,
Mr. Hands does not demonstrate any collateral consequences resulting from the parole
proceedings that would overcome a finding of mootness and no such collateral
consequences are apparent. The fact that Mr. Hands’ parole was revoked does not
alter the Court’s conclusion that his claim challenging parole proceedings in December
2014 is moot. Therefore, Mr. Hands fails to present a case or controversy for purposes
of Article III with respect to his claim challenging the revocation of his parole, and thus
his Application will be dismissed for lack of subject matter jurisdiction.
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

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ORDERED that the habeas corpus application and the application are denied
and the action is dismissed with prejudice for the reasons stated in this order. It is
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

19th

day of

August

, 2015.

BY THE COURT:

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

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