Harrison v. Ploughe

Filing 15

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 10/6/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORAD0
Civil Action No. 15-cv-01382-GPG
THURMAN HARRISON, JR.,
Applicant,
v.
PAMELA J. PLOUGHE,
Respondent.

ORDER OF DISMISSAL

Applicant, Thurman Harrison, Jr., is in the custody of the Colorado Department of
Corrections (CDOC). He has filed, pro se, an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2241 (ECF No. 1). Mr. Harrison has been granted leave to
proceed in forma pauperis pursuant to 28 U.S.C. ' 1915.
I. Application and Procedural Background
Mr. Harrison states the following in his Application:
[Applicant] is currently incarcerated . . . for a crime committed in Denver and
Jefferson County. Mr. Harrison was sentenced to a term of 4 years to the
[CDOC] on July 20, 2012 in the Denver County case no. 11CR5231 for
Forgery with a term of 2 years of mandatory parole, the sentence was to run
concurrently with Mr. Harrison=s parole violation and on August 20, 2012 in
the Jefferson County case no. 12CR0646 Mr. Harrison was sentence[d] to
four years to the CDOC . . . , with a mandatory period of parole of 3 years.
The sentence was to run concurrent with the Denver Case. Mr. Harrison
was awarded 205 days of presentence confinement credit in the Jefferson
County case. Mr. Harrison has not been credited with the presentence
confinement credit that was granted to him by the Denver District Court.
With Mr. Harrison presentence confinement credit, [he] should have been
released to his Mandatory parole on or about March 16, 2015.

(ECF No. 1, at 2). Mr. Harrison also asserts that he was denied earned time credits
against his sentence. (Id. at 6).
On December 29, 2014, Mr. Harrison filed a petition for a writ of mandamus, in
Fremont County District Court Case No. 14cv188, concerning the CDOC’s failure to apply
presentence confinement credit to his sentences, as well as the denial of earned time
credits. (ECF No. 8-1, at 2). The state district court denied the petition on May 7, 2015.
(Id. at 1, 8). Mr. Harrison did not appeal the state district court’s order to the Colorado
Court of Appeals. (See ECF No. 8-2).
On March 30, 2015, Mr. Harrison filed a Petition for a Writ of Habeas Corpus in
Fremont District Court Case No. 15cv47, which was denied summarily by the district court
on April 22, 2015. (See ECF No. 8-3). Applicant thereafter filed a Colo. Crim. P. Rule
21 motion in the Colorado Supreme Court, which was denied on June 9, 2015. (See
ECF No. 8-4).
Mr. Harrison filed a motion for post-conviction relief pursuant to Colo. Crim. P. Rule
35(c), in the Fremont County District Court, on July 17, 2015. (See ECF Nos. 8-5, 8-6).
That motion is currently pending. (ECF No. 8-6).
Mr. Harrison filed his § 2241 Application in this Court on June 29, 2015.
On June 30, 2015, Magistrate Judge Gordon P. Gallagher ordered Respondent to
file a Preliminary Response addressing the affirmative defenses of timeliness and
exhaustion of state court remedies, if Respondent intended to raise one or both of those
defenses. (ECF No. 8). Respondent filed a Preliminary Response on July 21, 2015.
(ECF No. 8).

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On August 21, 2015, Applicant filed a notice of address change with the Court in
which he states that he was released from the Four Mile Correctional Center in Canón
City, Colorado, and is now living at a residential address in Denver, Colorado. (ECF No.
9). Magistrate Judge Gallagher thereafter issued a minute order on August 24, 2015
(ECF No. 10), directing the clerk of the court to mail a copy of the Preliminary Response to
Applicant at his new address and afforded him 21 days to file a Reply. Applicant filed his
Reply on September 8, 2015. (ECF No. 13).
The Court must construe the Application and other papers filed by Mr. Harrison
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 this action without prejudice.
II. Analysis
A. Mootness
As a preliminary matter, the Court must determine whether the Application has
been mooted by Mr. Harrison’s release from prison.
“Mootness is a threshold issue because the existence of a live case or controversy
is a constitutional prerequisite to federal court jurisdiction.” McClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir.1996); see also Alvarez v. Smith, 558 U.S. 87,
130 S.Ct. 576, 580 (2009). “To invoke the jurisdiction of a federal court, a litigant must
have suffered, or be threatened with, an actual injury traceable to the defendant and likely
to be redressed by a favorable judicial decision.” Lewis v. Cont'l Bank Corp., 494 U.S.
472, 477 (1990). At all stages of the case, the parties must have a “personal stake in the
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outcome’ of the lawsuit. Spencer v. Kenma, 523 U.S. 1, 7 (1998) (quoting Lewis, 494
U.S. at 477-78). Federal courts have no authority to give an opinion upon a question that
is moot as a result of events that occur during the pendency of the action. Church of
Scientology v. United States, 506 U.S. 9, 12 (1992).
Applicant’s claim that he is entitled to presentence confinement credit was not
mooted by his release from prison to a term of mandatory parole. Under Colorado law, a
criminal defendant who is owed presentence confinement credit, but has completed the
confinement portion of his sentence, is entitled to have that credit applied to his
mandatory parole term. See Edwards v. People, 196 P.3d 1138 (Colo. 2008). As such,
Mr. Harrison continues to have Apersonal stake in the outcome= of the lawsuit. Spencer,
523 U.S. at 7, and his claim is not moot. See Aycox v. Lytle, 196 F.3d 1174, 1176 n. 2
(10th Cir.1999) (petitioner's release on parole did not moot habeas petition where parole
period would be shortened if he prevailed on the merits of his claim).
However, Applicant’s claim that the CDOC failed to award him earned time credits
to which he was entitled was mooted by his release on parole. See Meyers v. Price, 842
P.2d 229, 232 (Colo. 1992) (stating that earned time credits “do not constitute service of
sentence, but only serve the purpose of determining an inmate’s parole eligibility date.”);
Oliver v. Raemisch, No. 13-1348, 564 F. App’x 923 (10th Cir. April 29, 2014) (unpublished)
(affirming district court’s order dismissing, as moot, § 2241 petitioner’s claim that earned
time credits wrongfully denied to him while he was incarcerated be applied to the
mandatory parole component of his sentence). Applicant was afforded an opportunity to
demonstrate that an exception to the mootness doctrine applies under Riley v. INS, 310
F.3d 1253, 1256-57 (10th Cir. 2002), but he failed to do so. (See ECF Nos. 12, 14).
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Accordingly, the claim for additional earned time credits will be dismissed as moot.
B. Exhaustion of State Court Remedies
Respondent argues in the Preliminary Response that the Application should be
dismissed for Mr. Harrison’s failure to exhaust available state court remedies.
A state prisoner must exhaust state court remedies before seeking federal habeas
corpus relief under § 2241. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000).
The exhaustion requirement is satisfied once the federal claim has been presented fairly
and properly to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989).
Fair presentation requires that the federal issue be presented properly “to the highest
state court, either by direct review of the conviction or in a postconviction attack.” Dever
v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “An applicant shall not
be deemed to have exhausted the remedies available in the courts of the State . . . if he
has the right under the law of the State to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c).
Finally, “[t]he 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 showing he has exhausted all available
state remedies for each particular claim. See Miranda v. Cooper, 967 F.2d 392, 398
(10th Cir. 1992).
The state court records submitted by Respondent reflect that Applicant has thus
far failed to properly exhaust available state court remedies.

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Mr. Harrison did not exhaust state court remedies in Fremont County District Court
Case No. 14cv188 because he did not appeal the district court’s order denying his
mandamus action.
Mr. Harrison did not exhaust state court remedies in 15cv47 because he failed to
follow the proper appellate procedure. Applicant should have filed a direct appeal of the
trial court’s order denying his petition for a writ of habeas corpus to the Colorado Supreme
Court pursuant to COLO. REV. STAT. § 13-4-102(1)(e) (2015). Instead, Mr. Harrison
sought extraordinary relief in the Colorado Supreme Court., which does not satisfy the
exhaustion requirement. “[W]here the claim has been presented for the first and only
time in a procedural context in which its merits will not be considered unless there are
special and important reasons therefor, raising the claim in such a fashion does not, for
the relevant purpose, constitute fair presentation.” Castille, 489 U.S. at 351 (quotations
and citation omitted); see also Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir.
1997) (applying Castille and holding “petitioner’s presentation of his claim to the Wyoming
Supreme Court via a petition for writ of certiorari was . . . ineffective to exhaust his state
remedies”). The Colorado Supreme Court, in its discretion, may decline to address the
merits of claims asserted in an original petition for an extraordinary writ. See Colo App. R.
21; see also Rogers v. Best, 171 P.2d 769, 770 (Colo. 1946). Furthermore, relief under
Rule 21 “shall be granted only when no other adequate remedy, including relief available
by appeal or under C.R.C.P. 106, is available.” C.A.R. 21(a)(1). As a result, the denial of
an original petition for an extraordinary writ by the Colorado Supreme Court does not
indicate that the court has considered the merits of the argument. See Bell v. Simpson,
918 P.2d 1123, 1125 n.3 (Colo. 1996). Because “[p]etitions to the Supreme Court in the
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nature of mandamus [and] habeas corpus . . . are subject” to this rule, see C.A.R.
21(a)(2), the Court finds that Mr. Harrison’s claims were not fairly presented to the
Colorado Supreme Court in 15cv47.
And, finally, Mr. Harrison’s motion for post conviction relief pursuant to Colo. Civ.
P. Rule 35, filed in Fremont County District Court Case No. 11cr5231, does not satisfy the
exhaustion requirement because that motion is still pending. See 28 U.S.C. 2254(c).
For these reasons, the action will be dismissed for failure to exhaust state
remedies. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
' 2241 (ECF No. 1) is DENIED and this action is DISMISSED WITHOUT PREJUDICE as
follows: Applicant’s claim challenging the denial of presentence confinement credit is
dismissed for failure to exhaust state court remedies. The claim challenging the denial of
earned time credits is dismissed as moot (lack of subject matter jurisdiction). It is
FURTHER ORDERED that no certificate of appealability will issue because jurists
of reason would not debate the correctness of this procedural ruling and Mr. Harrison 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. 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 Applicant files a notice of appeal he 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.
DATED October 6, 2015, at Denver, Colorado.
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BY THE COURT:

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

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