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Albright v. Raemisch

United States District Court, D. Colorado

November 13, 2014

GREGORY DEAN ALBRIGHT, Applicant,
v.
RICK RAEMISCH, Exec. Dir. CDOC, DAVID WALCHER, Arapahoe County Sheriff, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Gregory Dean Albright, was incarcerated at the Arapahoe County Detention Facility in Centennial, Colorado, when he initiated the instant action. He subsequently informed the Court that he has been transferred to the Adams County Detention Facility in Brighton, Colorado. Mr. Albright is a Colorado Department of Corrections (DOC) offender who is on parole and awaiting the resolution of parole revocation proceedings.

On May 29, 2014, Mr. Albright filed pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1). On July 15, 2014, after being ordered to do so, Mr. Albright filed pro se an amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 10). He is challenging his detention at the Arapahoe County Detention Facility on a parole hold. He also challenges the DOC's application of good-time and earned-time credits to his criminal sentence. Also on July 15, Mr. Albright filed a motion titled "Motion to Set Aside Exhaustion Requirement" (ECF No. 11).

On July 22, 2014, Magistrate Judge Boyd N. Boland ordered Respondents to file a preliminary response limited to raising the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intended to raise either or both of those defenses in this action. The July 22 order also directed Respondents to address the "Motion to Set Aside Exhaustion Requirement."

On August 11, 2014, Respondents filed a preliminary response (ECF No. 21) arguing that the application should be denied and the action dismissed because the claims Mr. Albright asserts are unexhausted. On August 26, 2014, Mr. Albright filed a reply (ECF No. 22) to the preliminary response.

On October 6, 2014, Magistrate Judge Boland entered an order (ECF No. 28) directing Respondents to supplement the record within fourteen days by filing copies of Mr. Albright's opening brief in Colorado Supreme Court Case No. 14SA130 and the state supreme court's order entered on August 11, 2014, denying the appeal from Applicant's state habeas corpus petition. The October 6 order also directed Respondents to inform the Court of any other updates in Mr. Albright's state court filings pertinent to the resolution of this action, including but not limited to the hearing scheduled for August 15, 2014, in Applicant's petition for writ of habeas corpus for unlawful detention pending in Arapahoe County District Court Case No. 14CV129, and supplement the record with any orders entered in those state court filings. On October 20, 2014, Respondents filed their supplemental preliminary response (ECF No. 29).

On November 6, 2014, Mr. Albright filed a notification (ECF No. 32) that he would petition the United States Court of Appeals for the Tenth Circuit (Tenth Circuit) for a writ of mandamus seeking his release from incarceration. On the same day, the Tenth Circuit notified Mr. Albright of the steps he must take to keep the mandamus proceeding from being dismissed. See ECF No. 35.

The Court must construe liberally the amended application and other papers filed by Mr. Albright 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 deny the amended application and dismiss the action.

Mr. Albright asserts four claims for relief in the amended application. He asserts violations of his due process rights because of the alleged failure to provide a timely revocation hearing (claim one) and equal protection rights because of the denial of access to the state bail system and his detention on a parole hold (claim two). He asserts a claim of cruel and unusual punishment under the Eighth Amendment for his excessive bond (claim three). Finally, he asserts a violation of his Fourth Amendment search and seizure rights based upon miscalculations of good-time and earned-time credits (claim four).

Judicial review of the execution of a sentence is governed by § 2241. Caravalho v. Pugh, 177 F.3d 1177, 1178 (10th Cir. 1999). A federal court may only grant habeas corpus relief when a state prisoner is "in custody in violation of the constitution, laws, or treaties of the United States." 28 U.S.C. § 2241(c). Federal courts do not possess supervisory authority over state judicial proceedings; they may only intervene to correct violations of federal law. See, e.g., Smith v. Phillips, 455 U.S. 209, 221 (1982). Review of habeas corpus actions under § 2241 is governed by 28 U.S.C. § 2243, which vests the Court with the authority to decide the case as a matter of law. See 28 U.S.C. § 2243; Watts v. Hadden, 489 F.Supp. 987, 989 (D. Colo. 1980), aff'd, 651 F.2d 1354 (10th Cir. 1981).

"A habeas petitioner is generally required to exhaust state remedies whether his action is brought under § 2241 or § 2254." Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). In Picard v. Connor, 404 U.S. 270, 275-76 (1971), the Supreme Court noted:

We emphasize that the federal claim must be fairly presented to the state courts. If the exhaustion doctrine is to prevent unnecessary conflict between courts equally bound to guard and protect rights secured by the Constitution, it is not sufficient merely that the federal habeas applicant has been through the state courts. The rule would serve no purpose if it could be satisfied by raising one claim in the state courts and another in the federal courts. Only if the state courts have had the first opportunity to hear the claim sought to be vindicated in a federal habeas proceeding does it make sense to speak of the exhaustion of state remedies. Accordingly, we have required a state prisoner to present the state courts with the same claim he urges upon the federal courts.

Id. (internal citation and quotation marks omitted). "The exhaustion requirement is not one to be overlooked lightly. Principles of comity and federalism demand that the requirement be strictly enforced.'" Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995).

Mr. Albright is required to exhaust state remedies before he may raise his claims in federal court. See Montez, 208 F.3d at 866. The exhaustion requirement is satisfied once the federal claim has been presented fairly 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. Kansas 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). A state prisoner bringing a federal habeas corpus 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). "A state prisoner is generally barred from obtaining ...


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