RECOMMENDATION REGARDING DISMISSAL

GORDON P. GALLAGHER, Magistrate Judge.

This matter comes before the Court on Applicant Hunter Adam Melnick's Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1)1. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 11)2.

The Court must construe Applicant's filings 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 act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

The Court has reviewed the filings to date. The Court has considered the case file and the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Application be denied and dismissed without prejudice for failure to exhaust available state court remedies.

I. Factual and Procedural Background

Applicant is in the custody of the Colorado Department of Corrections. On March 6, 2019, he filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3). The Court granted him leave to proceed under 28 U.S.C. § 1915 (ECF No. 4).

In the Application, Applicant alleges the Colorado State Board of Parole ("CSBOP") did not comply with statutory "mandatory language" requiring a parole "reconsideration" hearing within a certain amount of time. (ECF No. 1 at 1). Applicant relies on Colo. Rev. Stat. § 17-2-201(14) for this proposition. (Id.). Applicant states, "[t]he issue is not that the parole board `abused its discretion', it[']s that the parole board `has no discretion' according to the mandatory language of the statute and that the Applicant has a constitutionally protected right to due process with that parole reconsideration." (Id. at 2). As relief, Applicant requests "an Order from this Court to the CSBOP discharging the Applicant from parole which immediately releases the Applicant." (Id. at 5).

The Court entered an Order to File Preliminary Response (ECF No. 5), directing Respondent to address the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies that apply to § 2241 actions.

Respondent filed a Preliminary Response, arguing that Applicant failed to exhaust state remedies (ECF No. 8). In summary, Respondent contends that, "to exhaust his state remedies, Melnick should either have raised this issue in a petition for a writ of mandamus in an action filed in the Colorado state courts pursuant to C.R.C.P. 106(a)(2), or he should have filed a petition for a writ of certiorari regarding the Colorado Court of Appeals' decision on this issue." (Id. at 4).

In Reply, Applicant alleges exhaustion is unnecessary for this Court "to review an abuse of discretion of the Respondent and the statutory language in question clearly limits the discretion of the Respondent." (ECF No. 9 at 1).

II. Exhaustion of Available State Court Remedies

A prisoner in state custody must exhaust all available state court remedies prior to seeking federal habeas corpus relief. Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000) ("A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254."). "The exhaustion requirement is satisfied if the issues have been `properly presented to the highest state court.'" Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir.1999) (quoting Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir.1994)); see also Castille v. Peoples, 489 U.S. 346, 351 (1989). Where a petitioner has not exhausted state remedies, "[g]enerally, a federal court should dismiss unexhausted claims without prejudice so that the petitioner can pursue available state-court remedies." Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006).

A habeas petitioner bears the burden of demonstrating that he has satisfied the exhaustion requirement. McCormick v. Kline, 572 F.3d 841, 851 (10th Cir. 2009) (internal citation omitted). A blanket statement that state remedies have been exhausted does not satisfy this burden. See Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993); see also Fuller v. Baird, 306 F. App'x 430, 431 n.3 (10th Cir. 2009) (stating that a bald assertion unsupported by court records is insufficient to demonstrate state remedies are exhausted).

In the Application, Applicant is clear that he challenges the CSBOP's compliance with Colo. Rev. Stat. § 17-2-201(14), which provides, "The board shall consider the parole of a person whose parole is revoked either for a technical violation or based on a self-revocation at least once within one hundred eighty days after the revocation if the person's release date is more than nine months from the date of the person's revocation. . ." He asserts he exhausted available state court remedies by moving for relief under Colo. Crim. P. 35(c) in the state courts. (Id. at 4-5).

The U.S. Court of Appeals for the Tenth Circuit has "held that federal courts should abstain from the exercise of section 2241 jurisdiction if the issues raised in the petition may be resolved either by trial on the merits in the state court or by other state procedures available to the petitioner." Stevens v. Sheriff of El Paso Cty., Colo., 15 F. App'x 740, 742 (10th Cir. 2001) (unpublished) (internal punctuation and citation omitted). The Colorado courts have the power to review the Parole Board's actions when the Board fails to exercise its statutory duties. In re Question Concerning State Judicial Review of Parole Denial Certified by U.S. Court of Appeals for the Tenth Circuit, 610 P.2d 1340, 1341 (Colo. 1980); see also Arguello v. Bd. of Parole, No. 07-cv00698-MSK-BNB, 2010 WL 368666, at *2 (D. Colo. Jan. 29, 2010). "[T]he Colorado state courts apparently entertain requests for mandamus relief from prisoners upon the proper showing," including with regard to claims that the CSBOP failed to exercise its statutory duties. Stevens, 15 F. App'x at 742 (citing Fraser v. Colo. Bd. of Parole, 931 P.2d 560, 562 (Colo. App.1996) (pro se prisoner action alleging parole board failed to exercise statutory duties treated as action in nature of mandamus)); see also In re Question, 610 P.2d at 1341 ("a person denied parole can seek judicial review only as provided by C.R.C.P. 106(a)(2)").

Applicant need not pursue his claims to the Colorado Supreme Court to exhaust them. Ellis v. Raemisch, 872 F.3d 1064, 1082 (10th Cir. 2017) ("Rule 51.1 renders CSC review `unavailable' for purposes of AEDPA exhaustion"), cert. denied, 138 S.Ct. 978 (2018). However, although Applicant pursued relief under Colo. Crim. P. 35, he has made no showing that he pursued relief under the Colorado mandamus rule, Colo. R. Civ. P. 106(a)(2). Thus, Applicant cannot establish that he exhausted all available state court remedies. Magar v. Parker, 490 F.3d 816, 818 (10th Cir. 2007) ("Congress has emphatically directed us that habeas petitioners seeking relief in federal court must first exhaust all available state court remedies—that is, unless doing so would be futile."). Applicant offers no argument that doing so somehow would be futile. Thus, this Magistrate Judge recommends that the Application be denied and dismissed without prejudice for failure to exhaust available state court remedies.

III. Recommendation

For the reasons set forth herein, this Magistrate Judge respectfully

RECOMMENDS that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) be DENIED and DISMISSED WITHOUT PREJUDICE for failure to exhaust available state court remedies.