Moment v. Colorado State Board of Parole

Filing 13

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 7/8/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00799-GPG
NASHON MOMENT,
Applicant,
v.
CDOC,
COLORADO STATE BOARD OF PAROLE,
CPO A. TATE,
CPO K. WALDEN,
BRANDON C. SHAFFER,
REBECCA L. OAKES, and
SCF WARDEN CHAPDELAINE,
Respondents.

ORDER OF DISMISSAL

Applicant Nashon Moment 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 was granted
leave to proceed pursuant to 28 U.S.C. § 1915.
On April 16, 2015, Magistrate Judge Gordon P. Gallagher directed Applicant to
cure certain deficiencies by submitting a certified account statement and naming a
proper respondent in the Application. Applicant filed an Amended Application, ECF No.
5, and a certified account statement, ECF No. 6 at 3-4, on April 28, 2015. Magistrate
Judge Gallagher reviewed the Amended Application, found Applicant is challenging the
revocation of his parole, and directed Respondent Warden Chapdelaine, the only

properly named respondent in this action, to file a Preliminary Response to the
Application that addresses the affirmative defenses of timeliness and exhaustion of
state court remedies.
On June 9, 2015, Respondent filed a Preliminary Response, ECF No. 12.
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 asserts that he was arrested on November 19, 2014, because of an
alleged dirty urinalysis (UA) and subsequently returned to prison. Apr. 28, 2915
Application, ECF No. 5, at 2-3. He further asserts that his parole was wrongly revoked
because another resident’s name was on the UA. Id. Applicant seeks release from
prison and money damages. (The sole remedy available in a habeas action is release,
and money damages are premature pursuant to Heck v. Humphrey, 512 U.S. 477
(1994).) Applicant also asserts that he filed a grievance over a month ago, but he has
not received an answer. Id. at 5.
Respondent Chapdelaine asserts that Applicant was convicted of possession of
dangerous drugs on December 9, 2014, see Prelim. Resp., ECF No. 12-2, Ex. B, and a
parole rescission hearing was held on March 23, 2015, which resulted in the rescinding
of Applicant’s parole and regression to the DOC, see id. ECF No. 12-3, Ex. C.

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Respondent Chapdelaine further asserts that issues concerning a Code of Penal
Discipline charge and conviction should be addressed via a C.R.C.P. 106.5 case. See
ECF No. 12 at 4-5. Furthermore, Respondent Chapdelaine contends that the
Application should be denied because Applicant has failed to exhaust his state
remedies regarding the rescission of his parole by filing either a state habeas petition in
his criminal case or a separate state civil habeas action. Id. at 4-5.
Finally, Respondent Chapdelaine has provided the state court register for all of
Applicant’s criminal cases, Case No. 2008CR1503, 2008CR3514, 2009M1727,
2010CR2264, and 2010CR10176, and the search results of appellate court records for
any appeals that Applicant may have filed. Prelim Resp., Exs. D, E and F, ECF Nos.
12-4, 12-5, and 12-6. None of the records provided by Respondent Chapdelaine
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.
1995). A state prisoner bringing a federal habeas corpus action bears the burden of

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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 nothing he asserts in the Application demonstrates that he has exhausted all
available state court remedies. 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
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438

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(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 pursuing a federal habeas
corpus action. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED July 8, 2015, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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