Wiggins v. Hooks

Filing 15

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 11/19/15. No certificate of appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01522-GPG
KENNETH WIGGINS,
Applicant,
v.
BRAD HOOKS, and
THE COLORADO ATTORNEY GENERAL,
Respondents.
______________________________________________________________________
ORDER OF DISMISSAL
______________________________________________________________________
Applicant, Kenneth Wiggins, is incarcerated in a Georgia state prison. Mr.
Wiggins filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the
United States District Court for the Southern District of Georgia challenging a detainer
lodged by the State of Colorado. The petition was transferred to this Court on July 17,
2015. A challenge to a state detainer normally is filed pursuant to 28 U.S.C. § 2241.
See e.g. Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 488 (1973).
Mr. Wiggins filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2241 (ECF No. 5) on this Court’s approved form on August 24, 2015. He has
been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
On September 28, 2015, Magistrate Judge Gordon P. Gallagher issued an Order
(ECF No. 8) adding the Colorado Attorney General as a Respondent and directing the
Respondents to file a Preliminary Response addressing the affirmative defenses of
timeliness and/or exhaustion of state court remedies, if the Respondents intended to

1

assert one or both defenses. Respondents filed a Preliminary Response on October
19, 2015. (ECF No. 14). Applicant was given an opportunity to file a Reply.
The Court construes the § 2241 Application liberally because Mr. Wiggins is not
represented by counsel. 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, this action will be dismissed.
I. Background
On April 1, 2004, Applicant pled guilty in the Larimer County, Colorado,
Combined Courts to disorderly conduct as an act of domestic violence and was
sentenced to one year of probation. (ECF No. 14-1 at 3-4, 7). Thereafter, the
prosecution twice filed motions to revoke his probation. (Id. at 6-7). The prosecution
withdrew the first motion pursuant to a plea agreement in which Applicant pled guilty in
a separate misdemeanor case. (Id.). The second probation revocation proceeding
resulted in Applicant serving thirteen days in jail. (Id. at 6).
On October 18, 2005, the prosecution filed a third motion to revoke probation.
(Id.). Applicant failed to appear at a revocation hearing scheduled for December 2,
2005, and the court issued a warrant for his arrest. (Id. at 5-6).
In July 2012, Applicant began serving an eight-year sentence in the custody of
the Georgia Department of Corrections for the offenses of theft committed on
September 17, 2009 and robbery committed on May 1, 2012. (ECF No. 14-5).
On August 4, 2015, Applicant filed a letter with the Larimer County Combined
Courts asking the court to reach a disposition of the December 2005 arrest warrant

2

because it was preventing his transfer from a Georgia state prison to a half-way house.
(ECF No. 14-2). The prosecution declined to resolve the case by mail on the grounds
that such a resolution would be inappropriate and the warrant was necessary to assure
Applicant’s return to Colorado upon completion of his prison sentence. (ECF No. 14-3).
On August 12, 2015, the state court denied Applicant’s request for the reasons stated in
the prosecution’s response. (ECF No. 14-4).
In the § 2241 Application, Applicant claims that the State of Colorado’s failure to
transfer him to Colorado to resolve his misdemeanor case violated the speedy trial
provisions of the Interstate Agreement on Detainers Act (IAD). (ECF No. 5). He asks
that the outstanding Colorado warrant be dismissed. (Id. at 7).
Respondents argue that the Court lacks subject matter jurisdiction over the
§ 2241 Application, pursuant to the doctrine of Younger abstention, and because
Applicant fails to allege that he is in custody in violation of federal law. (ECF No. 14 at
5-10). Respondents further contend that the action is untimely under the AEDPA oneyear limitation period, and that Applicant failed to exhaust available state court remedies
prior to seeking federal habeas corpus relief. (Id. at 11-13).
II. Analysis
A. In Custody Requirement
An applicant for federal habeas corpus relief must be “in custody.” 28 U.S.C.
§ 2241(c)(1)(3). The applicant must be “in custody” under the challenged conviction or
sentence at the time his habeas petition is filed. See Maleng v. Cook, 490 U.S. 488,
490-91 (1989); Spencer v. Kemna, 523 U.S. 1, 7 (1998). The “in custody” requirement
is jurisdictional. See McCormick v. Kline, 572 F.3d 841, 847-48 (10th Cir. 2009).

3

Mr. Wiggins meets the “in custody” requirement if he is subject to a state detainer
that has been lodged with the Georgia authorities because the detainer may result in his
confinement in a Colorado correctional institution in the future. See Braden, 410 U.S.
at 488-89 (a petitioner who is subject to a state detainer seeks to challenge a future
confinement and therefore, satisfies the “in custody” requirement). However,
Respondent Colorado Attorney General represents that the outstanding Colorado arrest
warrant was never lodged as a detainer with the Georgia authorities. (ECF No. 14 at 7).
Regardless, Respondents concede, and the Court agrees, that Applicant meets the “in
custody” requirement because the Colorado arrest warrant issued due to his failure to
appear at his probation revocation hearing is still active. See, e.g., Cabrera v. Zavaras,
No. 07-1342, 261 F. App’x. 102, 104 (10th Cir. Jan. 16, 2008) (unpublished) (petitioner
who was caught illegally reentering the country and detained in Las Cruces, New
Mexico, due to an active Colorado arrest warrant for his parole violation was in custody
for purposes of § 2254(a)).
Furthermore, Applicant also meets the “in custody” requirement because he was
free on a $2,500 bond securing his appearance at the time he absconded (ECF No. 141 at 8-9). See Oyler v. Allenbrand, 23 F.3d 292, 293 (10th Cir. 1994) (concluding that
petitioner was in custody where he filed his habeas petition while on bond pending
appeal but before his sentence had been reduced to probation and before he began to
serve that probation); see also United States ex rel. Grundset v. Franzen, 675 F.2d 870,
872 (7th Cir.1982) (custody requirement satisfied by person on bail pending final
disposition of his case); Marden v. Purdy, 409 F.2d 784, 785 (5th Cir. 1969) (that

4

applicant was free on a cash bond when he filed his petition “was a sufficient restraint
on this applicant’s liberty to support habeas jurisdiction”).
The Court finds that Applicant was “in custody” for the purposes of challenging
the outstanding Colorado arrest warrant charging him with failure to appear at a
probation revocation hearing.
B. Younger abstention
To the extent Mr. Wiggins seeks to stop Colorado’s prosecution of the probation
revocation proceeding, this Court lacks jurisdiction over the claim under Younger v.
Harris.
Absent extraordinary or special circumstances, federal courts are prohibited from
interfering with ongoing state criminal proceedings. See Younger v. Harris, 401 U.S. 37
(1971); Phelps v. Hamilton, 122 F.3d 885, 889 (10th Cir. 1997). The rationale for
abstention is that a “federal court should decline to exercise its jurisdiction in the interest
of comity and federalism,” as well as “avoidance of needless friction with state policies.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 714, 717-18 (1996). Abstention is
appropriate under Younger if three conditions are met: “(1) the state proceedings are
ongoing; (2) the state proceedings implicate important state interests; and (3) the state
proceedings afford an adequate opportunity to present the federal constitutional
challenges.” Phelps, 122 F.3d at 889. The abstention principles of Younger are
jurisdictional and apply whether the plaintiff seeks equitable or monetary relief. See
D.L. v. Unified School Distr. No. 497, 392 F.3d 1223, 1228 (10th Cir. 2004); Parkhurst v.
Wyoming, 641 F.2d 775, 777 (10th Cir.1981).

5

The first condition for Younger abstention is met because Applicant’s Colorado
criminal case is pending. The second and third conditions are also satisfied because
Colorado provides an adequate forum to hear Applicant’s challenges to the probation
violation charge(s) once he is released by the Georgia Department of Corrections and is
returned to Colorado to conclude his probation revocation proceeding. Furthermore, the
Supreme Court “has recognized that the States’ interest in administering their criminal
justice systems free from federal interference is one of the most powerful of the
considerations that should influence a court considering equitable types of relief.” Kelly
v. Robinson, 479 U.S. 36, 49 (1986) (citing Younger, 401 U.S. at 44-45).
Mr. Wiggins “may overcome the presumption of abstention ‘in cases of proven
harassment or prosecutions undertaken by state officials in bad faith without hope of
obtaining a valid conviction and perhaps in other extraordinary circumstances where
irreparable injury can be shown.’” Phelps, 122 F.3d at 889 (quoting Perez v. Ledesma,
401 U.S. 82, 85 (1971)).
Courts have considered three factors in determining whether a prosecution is
commenced in bad faith or to harass:
(1) whether it was frivolous or undertaken with no reasonably objective
hope of success; (2) whether it was motivated by the defendant’s suspect
class or in retaliation for the defendant’s exercise of constitutional rights;
and (3) whether it was conducted in such a way as to constitute
harassment and an abuse of prosecutorial discretion, typically through the
unjustified and oppressive use of multiple prosecutions.
Phelps, 122 F.3d at 889. It is Applicant’s “‘heavy burden’ to overcome the bar of
Younger abstention by setting forth more than mere allegations of bad faith or
harassment.” Id.

6

Mr. Wiggins does not allege specific facts to show that the prosecution has acted
in bad faith in filing a probation revocation complaint against Applicant.
Finally, Applicant has not shown an irreparable injury stemming from the state
court criminal prosecution. Although Mr. Wiggins may bring a § 2241 proceeding to
“demand enforcement of the [State's] affirmative constitutional obligation to bring him
promptly to trial,” Braden, 410 U.S. at 489-90, that is not the relief Applicant seeks.
Instead, Applicant asks the Court to intervene in a pending state court criminal
prosecution and order that the outstanding arrest warrant be dismissed because of a
speedy trial violation. See Capps v. Sullivan, 13 F.3d 350, 353 (10th Cir. 1993) (“[An]
attempt to dismiss an indictment or otherwise prevent a prosecution . . . is normally not
attainable by way of pretrial habeas corpus; but an attempt to force the state to go to
trial may be made prior to trial, although state remedies must still be exhausted.”)
(internal quotation marks and citations omitted); see also Braden, 410 U.S. at 491
(stating that in federal court, a petitioner may not seek “to forestall a state prosecution,
but to enforce the [State]'s obligation to provide him with a state court forum.”).
Furthermore, Mr. Wiggins bears the blame for failing to appear at the probation
revocation hearing scheduled for December 2, 2005. And, finally, the fact that Mr.
Wiggins will be forced to appear in a Colorado state court for a future probation
revocation proceeding, by itself, is not sufficient to establish great and immediate
irreparable injury. See Younger, 401 U.S. at 46; Dolack v. Allenbrand, 548 F.2d 891,
894 (10th Cir.1977).
If Mr. Wiggins ultimately has his probation revoked in state court and he believes
that his federal constitutional rights were violated in obtaining that revocation, he may

7

pursue his claims in federal court by filing a § 2254 application after he exhausts state
remedies.
The Court finds that Younger abstention applies to Applicant’s request that the
outstanding Colorado probation revocation warrant be dismissed.
C. Failure to Exhaust State Remedies
Respondents also contend that Applicant failed to exhaust available remedies in
Colorado before seeking federal habeas relief. (ECF No. 14 at 12-13).
Exhaustion of available state court remedies is necessary before a federal court
will entertain a pretrial habeas petition. See Braden, 410 U.S. at 489-90; Capps, 13
F.3d at 354; see also Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). The
exhaustion doctrine requires a habeas applicant to fairly present his federal claim in the
state district and appellate courts. See Baldwin v. Reese, 541 U.S. 27, 29 (2004); see
also O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (“[S]tate prisoners must give the
state courts one full opportunity to resolve any constitutional issues by invoking one
complete round of the State's established appellate review process.”).
Applicant’s letter to the Larimer County Combined Courts requesting resolution of
his warrant did not allege a violation of the IAD or federal constitutional law. Further,
Applicant did not attempt to appeal the state district court’s decision. Accordingly, the
Court finds that Applicant failed to exhaust state court remedies before seeking federal
habeas relief.
D. Timeliness of Application
Respondents next assert that this action is barred by the AEDPA one-year
limitation period. (ECF No. 14 at 11-12).

8

The AEDPA one-year limitation period, codified at 28 U.S.C. § 2244(d), applies
to § 2241 actions filed by persons in state custody. See Dulworth v. Evans, 442 F.3d
1265, 1268 (10th Cir. 2006); Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir. 2003). The
statute provides, in relevant part:
(1) A 1-year period of limitation shall apply to an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a State
court. The limitation period shall run from the latest of–
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of the time
for seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution or laws of the United States is removed, if the
applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted
was initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending shall
not be counted toward any period of limitation under this subsection.
28 U.S.C. § 2244(d).
In this case, the limitation period commenced either on December 2, 2005, when
the Colorado arrest warrant issued after Mr. Wiggins failed to appear for a probation
revocation hearing, or no later than September 29, 2009, when he requested a copy of
the NCIC report showing the existence of the Colorado warrant. (See ECF No. 14-2 at
3, 5-6). Assuming that the one-year period commenced as late as September 29, 2009,

9

it expired one year later. Applicant’s August 2015 letter to the Larimer County
Combined Courts requesting resolution of the outstanding arrest warrant did not toll the
limitations period, which had already passed. See Clark v. Oklahoma, 468 F.3d 711,
714 (10th Cir. 2004) (“Only state petitions for post-conviction relief filed within the one
year allowed by AEDPA will toll the statute of limitations.”); Fisher v. Gibson, 262 F.3d
1135, 1142-43 (10th Cir. 2001)(same). Accordingly, this § 2241 action, which was
initiated on July 17, 2015, is time-barred unless equitable tolling applies.
The one-year limitation period in 28 U.S.C. § 2244(d) is not jurisdictional and
may be tolled for equitable reasons “in rare and exceptional circumstances.” See
Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000)(internal quotation marks omitted);
see also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Equitable tolling may be
appropriate if (1) the petitioner is actually innocent; (2) an adversary’s conduct or other
extraordinary circumstance prevents the petitioner from timely filing; or (3) the petitioner
actively pursues judicial remedies but files a defective pleading within the statutory
period. See Holland v. Florida, 560 U.S. 631, 649 (2010); Gibson, 232 F.3d at 808.
Simple excusable neglect is not sufficient to support equitable tolling. Gibson, 232 F.3d
at 808. Furthermore, equitable tolling is appropriate only if the petitioner pursues his
claims diligently. Miller, 141 F.3d at 978. The petitioner must “allege with specificity ‘the
steps he took to diligently pursue his federal claims.’” Yang v. Archuleta, 525 F.3d 925,
930 (10th Cir. 2008) (quoting Miller, 141 F.3d at 978)).
Mr. Wiggins does not allege any facts in the § 2241 Application to meet his
burden of demonstrating that equitable tolling is appropriate in this action. Accordingly,
the Court finds that this § 2241 proceeding is also subject to dismissal as time-barred.

10

E. Failure to State a Violation of Federal Law
A state prisoner is entitled to relief only if he is held “in custody in violation of the
Constitution or laws or treaties of the United States.” See 28 U.S.C. § 2241(c).
Applicant claims that the Colorado authorities’ refusal to extradite him to
Colorado to resolve the probation violation charge contravened the IAD.
The IAD is a compact among forty-eight states, the District of Columbia, Puerto
Rico, the Virgin Islands, and the United States. See Carchman v. Nash, 473 U.S. 716,
719 (1985). Adopted as law by the State of Colorado, see COLO.REV.STAT. § 24-60501, et seq., the IAD is a “congressionally sanctioned interstate compact within the
Compact Clause, U.S. Const., Art. I, § 10, cl. 3, and thus is a federal law subject to
federal construction.” Carchman, 473 U.S. at 719; see also Knox v. Wyo. Dep’t of Corrs.
State Penitentiary, 34 F.3d 964, 967 (10th Cir. 1994). As explained by the United
States Supreme Court in Carchman:
Article III [of the IAD] . . . , establishes a procedure by which a prisoner
incarcerated in one State (the sending State) may demand the speedy
disposition of “any untried indictment, information or complaint” that is the
basis of a detainer lodged against him by another State (the receiving
State). If the prisoner makes such a demand, Art. III requires the
authorities in the receiving State to bring him to trial within 180 days or the
court must dismiss the indictment, information, or complaint, and the
detainer will cease to be of any force or effect.
473 U.S. at 716.
Respondent Colorado Attorney General argues that the IAD does not apply
because the Larimer County District Attorney’s Office has informed Respondent that no
official detainer has been lodged with the Georgia Department of Corrections. (ECF No.
14 at 7). Rather, the Colorado arrest warrant issued in December 2005 was placed into
the NCIC data base six and a half years before Applicant began serving his Georgia
11

prison sentence. (Id.). As such, Respondent’s maintain that there is no “detainer”
subject to the requirements of the IAD. See Johnson v. People, 939 P.2d 817, 820-821
(Colo. 1997) (stating that the IAD does not apply unless the requesting state lodges a
detainer with the official in the party state that has custody of the prisoner).
Undoubtedly, if no detainer was lodged with the appropriate officials in Georgia,
the speedy trial provisions of Article III of the IAD do not apply. However, even if the
Colorado arrest warrant was lodged as a detainer with the Georgia authorities,
Applicant cannot avail himself of the IAD.
“Article III [of the IAD] by its terms applies to detainers based on ‘any untried
indictment, information or complaint.’” Carchman, 473 U.S. at 724. “The language of the
Agreement therefore makes clear that the phrase ‘untried indictment, information or
complaint’ in Art. III refers to criminal charges pending against a prisoner.” Id. at 725. “A
probation-violation charge, which does not accuse an individual with having committed
a criminal offense in the sense of initiating a prosecution, thus does not come within the
terms of Art. III.” Id. Therefore, “a detainer based on a probation-violation charge is not
a detainer based on ‘any untried indictment, information or complaint,’ within the
meaning of Art. III.” Id. at 726; see also McDonald v. N.M. Parole Bd., 955 F.2d 631,
633 (10th Cir. 1991) (under Carchman, the IAD “has no applicability to probation or
parole revocation detainers”). Because Applicant complains about a pending parole
revocation charge, the IAD does not apply and, therefore, he is not entitled to federal
habeas relief based on an alleged violation of the IAD.
Furthermore, the Constitution does not afford Applicant an entitlement to an
immediate probation violation hearing. Under Gagnon v. Scarpelli, 441 U.S. 778

12

(1973), a probationer is entitled a preliminary and final revocation hearing in accordance
with the due process requirements set forth for parolees in Morrissey v. Brewer, 408
U.S. 471 (1972) (holding that a parolee is entitled to two hearings -- a preliminary
hearing at the time of his arrest and detention to determine whether there is probable
cause to believe that he has committed a violation of his parole; and a more
comprehensive hearing prior to the making of the final revocation decision.). However,
the due process requirements are not triggered until the probationer is taken into
custody for the probation violation. See Moody v. Daggett, 429 U.S. 78, 86 (1976)
(rejecting claim by parolee that he was entitled to an immediate probation revocation
hearing following the lodging of a detainer with an incarcerating institution, before he
was taken into custody as a parole violator); see also Carchman, 473 U.S. at 731 n. 10
(“This Court has never held, however, that a prisoner subject to a probation-violation
detainer has a constitutional right to a speedy probation-revocation hearing.”).
Accordingly, Mr. Wiggins is not entitled to a probation revocation hearing until he is
taken into custody pursuant to the Colorado arrest warrant, an event that will not occur
until after he has completed his incarceration for the Georgia convictions. See McNeal
v. United States, 553 F.2d 66, 68 (10th Cir.1977) (due process right to a revocation
hearing does not attach while federal parolee is serving an intervening state sentence).
And, finally, to the extent Applicant claims that that the existence of the Colorado
warrant is prejudicing his ability to be transferred to a half-way house in Georgia, in
violation of his constitutional rights, his claim challenges the conditions of his
confinement and is not cognizable in habeas corpus. See Cabrera v. Trammell, No. 127008, 488 F. App’x 294, 295 (10th Cir. July 6, 2012) (unpublished) (denying § 2241

13

petition and stating that “[i]f Mr. Cabrera intended to challenge the Oklahoma facility's
reliance on the detainer in denying him a transfer, that complaint should have been
lodged under 42 U.S.C. § 1983.”).
The Court has determined that several alternative grounds support dismissal of
this action and does not reach Respondents’ additional argument that the action is
untimely under 28 U.S.C. § 2244(d).
III. Orders
For the reasons discussed above, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 5), filed by Applicant, Keith Wiggins, is DENIED. Applicant’s
request that the Court stop the State of Colorado’s prosecution of the pending probation
violation charge is dismissed without prejudice under the abstention doctrine of Younger
v. Harris. In the alternative, this action is dismissed without prejudice for Applicant’s
failure to exhaust state court remedies. The § 2241 application is also subject to
dismissal as untimely under 28 U.S.C. § 2244(d), and fails to state a violation of
Applicant’s rights under federal law. 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.
Wiggins 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. Wiggins files a notice of appeal

14

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 November 19, 2015, at Denver, Colorado.
BY THE COURT:

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

15