United States District Court, D. Colorado
Waldo Mackey, Petitioner, Pro se, Canon City, CO.
For Lou Archuleta, Warden, Fremont Correctional Fac., Respondent: James Xavier Quinn, Colorado Attorney General's Office, Denver, CO.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior United States District Judge.
Applicant, Waldo Mackey, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Fremont Correctional Facility in Cañon City, Colorado. On June 13, 2014, he filed pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1).
Mr. Mackey, who is a sex offender, contended he was informed on January 15, 2014, by the state parole board that he would need to participate in and successfully complete the Sex Offender Treatment and Monitoring Program (SOTMP) in order to be considered for release on parole. He complained his case managers and the mental health department have refused to allow him to participate in the SOTMP, which is available at the Fremont Correctional Facility, apparently " because of disciplinary procedures." ECF No. 1 at 6. He asserted violations of the Eighth Amendment right to be free from cruel and unusual punishment and the Fourteenth Amendment right to due process stemming from the refusal to allow him to participate in the SOTMP for the ten months prior to his next parole hearing. As relief, he asked to " be granted parole and allowed to be able to take the sex offender program in the community." Id. at 10.
On June 16, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 4) granting Mr. Mackey leave to proceed pursuant to 28 U.S.C. § 1915 and directing him to file an amended habeas corpus application within thirty days.
In the June 16 order for an amended application, Magistrate Judge Boland explained that Mr. Mackey appeared to be asserting civil rights claims pursuant to 42 U.S.C. § 1983, i.e., denial of the ability to participate in the SOTMP, which are not properly raised in a habeas corpus action, but asking for habeas corpus relief pursuant to 28 U.S.C. § 2241, i.e., his release on parole.
Magistrate Judge Boland also pointed out in the June 16 order the differences between habeas corpus applications and civil rights complaints. " The essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." See Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997) (" Petitions under § 2241 are used to attack the execution of a sentence, . . . [while] § 2254 habeas and § 2255 proceedings, . . . are used to collaterally attack the validity of a conviction and sentence."); Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (discussing distinction between habeas corpus claims pursuant to § 2241 and conditions of confinement claims raised in civil rights actions). " It is well-settled that prisoners who wish to challenge only the conditions of their confinement, as opposed to its fact or duration, must do so through civil rights lawsuits filed pursuant to 42 U.S.C. § 1983 or Bivens [v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), ] . . . -- not through federal habeas proceedings." Standifer v. Ledezma, 653 F.3d 1276, 1280 (10th Cir. 2011).
Magistrate Judge Boland explained that Mr. Mackey may pursue habeas corpus claims seeking his release on parole in the instant action if he is challenging the execution of his sentence, whereupon he should file a § 2241 application, or attacking the validity of his conviction, whereupon he should file an amended § 2254 application. In any event, the magistrate judge further explained that if he intended to assert civil rights claims challenging the conditions of his confinement, he must file a separate civil rights action pursuant to § 1983. He may not proceed in the instant action with a hybrid pleading that appeared to combine asserting civil rights claims with a request for habeas corpus relief. Mr. Mackey was told he must decide which type of habeas corpus action he wanted to pursue, and directed to complete the appropriate forms for that action.
On July 3, 2014, Mr. Mackey filed an amended Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 5). On July 7, 2014, Magistrate Judge Boyd N. Boland ordered Respondent 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. On August 7, 2014, after being granted an extension of time, Respondents filed a preliminary response (ECF No. 11). On August 21, 2014, Mr. Mackey filed a reply (ECF No. 12) to the preliminary response.
The Court must construe Mr. Mackey's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (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 amended § 2241 application will be denied.
In the amended § 2241 application Mr. Mackey filed on July 3, he alleges he was convicted of first-degree murder in 1985 and received a sentence of twenty years to life, plus a period of parole. He asserts that he is a sex offender with convictions in California and his operating Colorado case also is of a sexual nature. He explains that because of his sex offenses he is required to participate in sex offender treatment to be considered for parole. He contends he has been on the SOTMP wait list for the past ten years, and that he cannot be considered for parole until he is enrolled in sex offender treatment.
On June 6, 2013, Mr. Mackey filed a petition for writ of habeas corpus in Fremont County District Court Case No. 13CV42. See ECF No. 11, ex. A. On July 23, 2013, the Fremont County District Court entered an order denying Mr. Mackey's petition. See ECF No. 11, ex. B. On July 17, 2013, Mackey filed a petition in the Colorado Supreme Court. See ECF No. 11, ex. C (Integrated Colorado Courts E-Filing System Register of Actions for Case No. 13SA185). Because he filed the appeal prior to the July 23 order of the state district court, Mr. Mackey filed a motion to withdraw the notice of appeal on August 7, 2013. See ECF No. 11, ex. D. On August 12, 2013, Mr. Mackey re-filed a notice of appeal. See ECF No. 11, ex. E. On August 21, 2013, the Colorado Supreme Court dismissed the notice of appeal in the earlier appeal in No. 13SA185. See ECF No. 11, ex. F (Order Granting Motion to Dismiss Appeal). On December 26, 2013, Mr. Mackey filed his opening brief. See ECF No. 11, ex. G. On April 8, 2014, the Colorado Supreme Court issued its order affirming the Fremont County district court decision denying Mr. Mackey's petition for writ of habeas corpus. See ECF No. 11, ex. H. On June 13, 2014, Mackey filed his original habeas corpus application in this Court. On July 7, 2014, he filed the amended application.
As his first and only claim, Mr. Mackey contends that his constitutional right to due process is being violated because he is being denied participation in the SOTMP, and as a result, being denied the opportunity to be considered for parole. As relief, he asks this Court to order " that DOC Mental Health either allow [him] to participate in the SOTMP, or inform the ...