ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant Demetrio A. Valerga is in the custody of the Colorado Department of Corrections (DOC) and currently is detained at the Jefferson County Detention Facility in Golden, 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. ECF No. 1. Applicant has paid the $5 filing fee.
On December 8, 2015, Magistrate Judge Gallagher directed Respondent to file a Preliminary Response to the Application that addresses the affirmative defenses of timeliness and exhaustion of state court remedies.
On December 29, 2015, Respondent filed a Preliminary Response, ECF No. 6. Applicant subsequently filed two pleadings, one titled, "Argument," ECF No. 10, and the other a Motion to Grant Writ of Habeas Corpus, ECF No. 11. The Court will construe the pleadings together as a Reply to the Preliminary Response.
The Court must construe the Application and Reply 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 that he was released from immigration custody on July 11, 2014, because the Immigration Customs Enforcement Agency was unable to secure travel papers from Argentina within ninety days. Applicant further asserts that he now is being held because he has been charged with two class five felonies, but claims this hold is illegal and his parole should be "discharged" pursuant to Colo. Rev. Stat. 17-22.5-404.7. ECF No. 1, at 9.
Respondent argues that the Application should be denied because Applicant has failed to exhaust state court remedies. Respondent contends that Applicant should have presented his claims to the Colorado state courts in a petition for a writ of habeas corpus prior to pursuing them in this Court, see Colo. Dep't of Corrs., Parole Division, v. Madison 85 P.3d 542, 543 (2004) or in a mandamus action, Vernier v. Colo. Dep't of Corrs, 77 P.3d 875, 877-78 (Colo. App. 2003); Colo. R. Civ. P. 106(a)(2). ECF No. 6 at 3-4. Respondent further contends that counsel has reviewed the Colorado State Court Data Access database, which is the Colorado state court's official database containing records of all cases filed in Colorado state courts; but he found no record of any civil habeas corpus petitions submitted by Applicant, nor any record of a civil mandamus by Applicant. ECF No. 6 at 4; ECF No. 7. Respondent concludes that dismissal is proper for failure to exhaust state court remedies.
In the Argument, construed as part of Applicant's Reply, he concedes that he has not exhausted his state court remedies, but he asserts that he filed a state habeas action in the Jefferson County District Court on December 23, 2015. ECF No. 10 at 2. Applicant states that he believes the Jefferson County District Court will rule in his favor, but if not he asks that this Court not deny him when he reapplies in the future. Id. Applicant further states that if this Court denies this action "so be it." Id. at 3. Applicant also asks that the Court provide Respondent with a copy of ECF No. 10. The Court finds Applicant's request for a copy to be sent to Respondent is unnecessary.
In addition, in the Motion to Grant Writ of Habeas Corpus, filed on January 27, 2016, Applicant argues that because he filed his state habeas action over thirty days prior, and the state court has not responded, he now asks this Court to "step-in" if the state court does not respond within a week. ECF No. 11 at 1-2.
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 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)).
First, Applicant filed this action on December 7, 2015, and concedes that he did not file a state habeas action until December 23, 2015, which remains pending. Second, federal courts do not possess supervisory authority over state judicial proceedings and may only intervene to correct violations of federal law. Chandler v. Florida, 449 U.S. 560, 582-583 (1981); Cupp v. Naughten, 414 U.S. 141, 146 (1973). Also, "Congress has emphatically directed . . . that habeas petitioners seeking relief in federal court must first exhaust all available state court remedies-that is, unless doing so would be futile because of `an absence of available State corrective process' or because `circumstances exist that render such process ineffective to protect the rights of the applicant." Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007) (quoting 28 U.S.C. § 2254(b)(1) (B)(i) and (ii); Wilson v. Jones, 430 F.3d 1113, 1117 (10th Cir. 2005) (noting habeas petitioner seeking relief under 28 U.S.C. § 2241 is required to first exhaust available state remedies, absent showing of futility). Third, the fact that Applicant allegedly filed a state habeas action on December 23, 2015, and as of January 25, 2016, had not received a response by the state court, without more, does not state an inordinate or inexcusable delay in pursuing his state court remedies or that there is no adequate or effective state remedy available to protect his rights.
The Court, therefore, will dismiss this action because Applicant has failed to demonstrate that he has exhausted all available state court remedies or that there is a basis for finding exhaustion should be waived.
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 Respondent's Motion for Leave to File Exhibits as Level 2 Restricted Documents, ECF No. 9, is granted. It is
FURTHER ORDERED that ECF Nos. 10 and 11 are construed as a Reply to the Preliminary Response; ECF No. 11, therefore, is terminated as a Motion. 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 no certificate of appealability shall issue because Applicant has failed to show that jurists of reason would find it debatable that the district court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied.
