Simpson v. Lind et al
ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/24/16. 15 Motion for Extension of Time is denied. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02536-GPG
NORMAN MICHAEL SIMPSON,
RANDY LIND, Warden of AVCF,
RICK RAEMISCH, Executive Director of CDOC,
BRANDEN SHAFFER, Chairman of Colorado Parole Board,
MARY CARLSON, CDOC Time Computation Manager,
CYNTHIA HOFFMAN, Colorado Attorney General,
ORDER OF DISMISSAL
Applicant Norman Michael Simpson is in the custody of the Colorado Department
of Corrections (DOC) and currently is incarcerated at the Arkansas Valley Correctional
Facility in Ordway, 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 November 19, 2015, Magistrate Judge Gallagher directed Respondents to file
a Preliminary Response to the Application that addresses the affirmative defenses of
timeliness and exhaustion of state court remedies.
On December 10, 2015, Respondents filed a Preliminary Response, ECF No. 9.
Applicant submitted a Response (Reply) and an Objection to Magistrate Judge
Gallagher’s February 4, 2016 Minute Order, ECF No. 15, on February 19, 2016. In the
Response and Objection, Applicant asks that this case be transferred to a district judge
for consideration and argues that he does not need to exhaust his motion to correct an
illegal sentence, because the district court granted his request to correct an illegal
sentence. ECF No. 15 at 1. Applicant further argues that he is not required to exhaust
his mandamus petition. Id. at 2. Applicant also asks for an extension of time to file a
“Completed Reply” and that a district judge address all “past and present motions.” Id. at
Based on the following, the Court will deny Applicant’s Objection to Magistrate
Judge Gallagher’s February 4, 2016 Minute Order, dismiss this action for failure to
exhaust state court remedies, and deny the February 19, 2016 Motion for Extension to
File a Completed Reply as moot.
First, the Court will address Applicant’s Objection to Magistrate Judge Gallagher’s
January 8 and February 4, 2016 Minute Orders. Rather than deny or confirm
Respondents= affirmative defense arguments, Applicant filed two motions for extensions
of time to reply to the Preliminary Response, one on January 7, 2016, and the other on
February 3, 2016. Applicant contended he needed additional time to access the prison
law library to conduct research, because he had been on lock down, and to obtain
documentation from the sentencing court. Magistrate Judge Gallagher denied both
motions because Respondents provided all the information Applicant needed to address
whether he had an appeal pending in state court regarding the claims at issue; and
Applicant did not assert he had been denied access or the ability to review the Preliminary
Under § 636(b)(1)(A), a judge may reconsider any pretrial matter designated to a
magistrate judge to hear and determine where it has been shown that the magistrate
judge’s order is clearly erroneous or contrary to law. Based on the reasons Magistrate
Judge Gallagher gave in the January 8 and February 4, 2016 minute orders for denying or
limiting the extension of time Applicant had to reply to the Preliminary Response, the
denial or limitation was proper. Applicant’s Objection, therefore, will be overruled.
Second, the Court will address Respondents’ exhaustion affirmative defense.
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.
Applicant asserts that on August 22, 2000, he was convicted of two class three
felonies in El Paso County, Colorado, in Case No. 2000CR230 and was sentenced to two
concurrent sixteen-year sentences with a five-year mandatory parole. Application, ECF
No. 1 at 2. On January 17, 2013, while Applicant was serving his sixteen-year sentence
he was convicted of a class four felony in El Paso County, Colorado, in Case No.
2011CR2711 and was sentenced to four years of incarceration with three years of a
mandatory parole. Id. Applicant contends that the sentence in Case No. 2011CR2711
was imposed as running concurrent with the previous sixteen-year sentence. Id.
Applicant further asserts that he was released on June 2, 2013, but was
reincarcerated on June 18, 2013, and had his parole revoked on August 7, 2013 for the
remainder of the five-year term. Id. Applicant contends that Respondents have
miscalculated and misapplied his presentence confinement credit to the class four felony
sentence, which has resulted in an erroneous determination that the class four sentence
is not the longer maximum governing sentence controlling his incarceration and parole
status. Id. at 2-3. Applicant also asserts he filed a motion to correct illegal sentence
pursuant to Crim. P. 35(a) on August 12, 2015, in the El Paso County, Colorado, District
Court that was granted on or about September 3, 2015. Id. at 3. Applicant contends
that the State court amended the sentence by Achanging the >illegal NPT 8/2/2011'
sentencing date to the correct >NPT 1-17-13' sentencing date and added the annotation to
the judgment: >credit for the time served 204 days=;@ but the DOC has failed to properly
apply the sentencing provisions and recalculate the sentence in accordance with the
applicable laws and amended NPT 1-17-13 sentencing date. Id. at 4.
Respondents argue that prior to Applicant filing the Rule 35(a) postconviction
motion in El Paso County Court, in which he raised the same claims he asserts in this
action, he filed an appeal, Case No. 2015CA1219, to the Colorado Court of Appeals
(CCA). ECF No. 9 at 4. The appeal, which Respondents contend is pending, seeks
review of the El Paso County District Court=s prior denial of a previous Rule 35(a) motion
Applicant filed in Case No. 2011CR2711. Id. Respondents further contend that the CCA
issued a show cause order on December 2, 2015, directing Applicant to respond and
state why the El Paso District Court=s September 2015 order granting his second Rule
35(a) motion should not be stricken. See ECF No. 9 at 4 and 9-2. The CCA=s order
suggests the El Paso District Court may not have had jurisdiction to enter the September
2015 order because of the appeal. ECF No. 9 at 4-5.
Furthermore, Respondents assert that on July 16, 2015, Applicant filed a petition
for writ of mandamus pursuant to Colo. R. Civ. P. 106(a)(2) in the Crowley County District
Court in Case No. 2015CV20 raising the same issues. Id. at 5-6. According to
Respondents as of December 10, 2015, the date they filed the Preliminary Response, the
Rule 106(a)(2) petition remained pending. Id. at 6.
In his February 19, 2016 Reply, Applicant asserts that he filed a motion to dismiss
the appeal in Case No. 2015CA1219, which the CCA did on January 27, 2016, without
having received a response from the State. See ECF No. 15 at 4. The Court notes that
Applicant’s motion to dismiss was filed on December 15, 2015, after Respondents
submitted the Preliminary Response in this Court on December 10, 2015, and identified
the pending appeal in support of their exhaustion affirmative defense. Nonetheless, the
CCA dismissed the appeal regarding the denial of the previous Rule 35(a) postconviction
motion and the State did not object to the dismissal of the appeal, leaving only the El Paso
County Court finding that Applicant’s sentence should be amended, which the State did
not appeal. The Court, therefore finds that the only concern remaining at issue, with
respect to the exhaustion affirmative defense, is Applicant’s claim that the DOC has
received the state court’s amended judgment, dated September 17, 2015, but has failed
to properly apply the sentencing provisions and recalculate his sentence in accordance
with the amended judgment.
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
Afairly 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 Ais 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). AThe 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 that he has exhausted all available state remedies. See Miranda v. Cooper,
967 F.2d 392, 398 (10th Cir. 1992).
Furthermore, the Asubstance 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 Abook and
verse on the federal constitution,@ Picard, 404 U.S. at 278 (internal quotation marks
omitted), A[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).
AA 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 contends the state court mandamus action has been dismissed, but he
needs additional time to access the prison facility law library to obtain a copy of the order
dismissing the case to submit to this Court. ECF No. 15 at 2. Applicant further
contends that “he is not required to exhaust his state mandamus action before seeking
habeas corpus immediate release in this Court.” Id. Applicant argues that mandamus
relief would only direct Respondents to properly apply his presentence confinement
credits and would not direct an immediate release. Id. Applicant next states he plans to
appeal the denial of his mandamus, but he argues that an appeal in state court would take
up to nine to twelve months, or longer, which is almost equivalent to the release date that
is based on the incorrect sentencing. Id. Applicant bases the release date on his
accumulated earned time. Id. Finally, Applicant argues that Respondents presented
“false evidence” to this Court because they did not present to the Court the amended
petition for a writ of mandamus that he filed on or about November 3, 2015. Id.
Applicant also concedes that he had filed a previous “state mandamus claim,” but the
November 3 petition “completely” amended the previous mandamus claim and rendered
the previous mandamus claim “a nullity as a matter of law.”
Under Colorado law, Applicant has an available state court remedy in the nature of
a mandamus proceeding. See e.g., Outler v. Norton, 934 P.2d 922 (Colo. App. 1997)
(mandamus action under Colo. R. Civ. P. 1016(a)(2) used to challenge calculation of
sentence was appealed and decided by the CCA), overruled on other grounds by
Meredith v. Zavaras, 954 P.2d 597 (Colo. 1998); see also People v. Dixon, 133 P.3d
1176, 1177 (Colo. 2006) (recognizing that Colo. App. R. 21 provides an appropriate
procedural mechanism, absent any other adequate remedy, to mandate compliance by
the department of corrections with trial court sentencing orders); People v. Ostuni, 58
P.3d 531, 533 (Colo. 2002) (same).
When Applicant initiated this action on November 17, 2016, his Rule 106(a)(2)
mandamus petition was pending in state court. See Case No. 2015cv20, Crowley
County Reg. of Action, http://www.jbits.courts.state.co.us/pas/pubaccess/user/govdata.
The Court may take judicial notice of the contents of the Crowley County Register of
Actions website in Case No. 2015cv20. See Triplet v. Franklin, No. 06-6247, 365 F.
App’x 86, 92 n.8 (10th Cir. Feb. 5, 2010) (unpublished) (taking judicial notice of Oklahoma
Department of Corrections’ website); see also N.M. ex rel. Richardson v. Bureau of Land
Mgmt., 565 F.3d 683, 702 n. 22 (10th Cir. 2009) (taking judicial notice of information on
“[t]he websites of two federal agencies”) Applicant, therefore, had not exhausted his
state court remedies regarding the execution of his sentence in Case No. 2011CR2711
before initiating this action.
Furthermore, Applicant concedes that he does have the ability to appeal any
denial of the Rule 106(a)(2), which is confirmed in Outler, but argues he should be
allowed to proceed in this Court with this action because he will continue to be illegally
confined and will not complete the appeal process until close to the time of his release.
According to the Register of Actions, Applicant’s Rule 106(a)(2) petition was dismissed
on January 14, 2016. Case No. 2015cv20, Crowley County Reg. of Action at 3.
Applicant’s argument that it will take him an additional nine to twelve months to appeal to
the CCA and to the Colorado Supreme Court is highly speculative and does not provide a
basis for this Court to waive the exhaustion of state court remedies requirement.
Furthermore, in Colorado, good and earned time credits do not count as service of
an inmate’s sentence, see Rather v. Suthers, 973 P.2d 1264, 1266 (Colo.1999), but
instead function only to establish parole eligibility, see Jones v. Martinez, 799 P.2d 385,
387–88 and n.5 (Colo.1990) (collecting cases). Cf. Thiret v. Kautzky, 792 P.2d 801, 805–
07 (Colo.1990) (recognizing an exception for inmates sentenced to a crime committed
after July 1, 1979, but before July 1, 1985, who are normally entitled to mandatory, not
discretionary, parole (except for sex offenders)). Therefore, even if Applicant was
awarded all of the earned time credits to which he claims an entitlement, he would not be
assured immediate or speedier release. See Kailey v. Price, 97 F. App’x. 835, 836-37
(10th Cir. 2012) (citing Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir.2005)
(“[H]abeas corpus is the only avenue for a challenge to the fact or duration of
confinement, at least when the remedy requested would result in the prisoner's
immediate or speedier release from that confinement.”) (emphasis in original omitted);
see also Frazier v. Jackson, No. 09–1429, 385 F. App’x. 808, 810–11 (10th Cir. 2010)
(“An application for habeas relief may be granted only when the remedy requested would
result in the prisoner’s immediate or speedier release from confinement.”). Applicant’s
argument that he will be released in fourteen months, therefore, is speculative.
Applicant’s other arguments that (1) his amended mandamus petition, filed on
November 6, 2015, is completely different that the original petition he filed in Case No.
2015cv20; and (2) relief in the mandamus action would only result in an order directing
Respondents to apply the presentence credits and not direct release from incarceration
do not provide a basis for waiving the exhaustion requirement. Applicant still is required
to exhaust his execution of sentence claims in state court as provided for under Outler.
The Court, therefore, will dismiss this action for failure to exhaust state court 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 (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 Applicant’s Objection, ECF No. 15, is overruled. It is
FURTHER 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 Applicant’s Motion for Extension of Time, ECF No. 15,
is denied as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
DATED February 24, 2016, at Denver, Colorado.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?