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Ippolito v. State, Department of Corrections/Division of Adult Parole

United States District Court, D. Colorado

December 23, 2014

JOSEPH C. IPPOLITO, Plaintiff,
v.
STATE OF COLORADO: DEPARTMENT(S) OF CORRECTIONS/DIVISION OF ADULT PAROLE, JOHN W. HICKENLOOPER: GOVERNOR, RICK RAEMISCH: EXECUTIVE DIRECTOR (DOC), WALT PESTERFIELD: DIRECTOR OF ADULT PAROLE COLORADO DEPT. OF CORRECTIONS, JOHN AND JANE DOES ET AL. X-XL, 1-100, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Joseph C. Ippolito, resides at the St. Francis Center in Denver, Colorado.[1] He initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Mr. Ippolito has been granted leave to proceed pursuant to 28 U.S.C. § 1915.

I. Procedural History

On June 5, 2014, the Court reviewed the § 2241 Application and determined that it failed to comply with Fed.R.Civ.P. 8. The Court directed Mr. Ippolito to file an Amended Application within thirty (30) days. Mr. Ippolito filed his Amended § 2241 Application on June 19, 2014. In the Amended § 2241 Application (ECF No. 7), Mr. Ippolito purported to challenge the implementation of certain bond conditions imposed by the state district court, which he failed to adhere to, and which resulted in bond revocation.

On June 26, 2014, the Court directed the Jefferson County Sheriff, the Respondent named in the Amended § 2241 Application, to file a preliminary response addressing the issues of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies. The Sheriff filed a Preliminary Response on July 16, 2014 (ECF No. 17). In the Preliminary Response, the Sheriff conceded that this action is timely under the AEDPA one-year limitation period, but contended that Applicant failed to exhaust available state court remedies for his claims. ( Id. at 3-6). Mr. Ippolito filed a Reply on August 6, 2014 (ECF No. 22), in which he asserted that he has exhausted all available state court remedies.

Review of the parties' filings revealed that Mr. Ippolito was convicted on June 18, 2013 in Jefferson County District Court Case No. 12CR2252 for violation of bail bond conditions. (ECF No. 17-3). He was sentenced to a 12-month term of imprisonment with the Colorado Department of Corrections (CDOC), to run consecutive to the 48-month sentence he received based on an earlier conviction for assault in the third degree. ( Id. ). Applicant was released from CDOC custody on August 19, 2014. (ECF No. 24).

In an August 22, 2014 Order (ECF No. 25), Magistrate Judge Boyd N. Boland advised Mr. Ippolito that because he was convicted of violating the conditions of his bond before he filed this action on June 3, 2014, any challenge to the legality of pre-trial detention is moot. See Thorne v. Warden, Brooklyn House of Detention for Men, 479 F.2d 297, 299 (2d Cir.1973) ("Since [petitioner] is now held as a convicted defendant rather than merely on a criminal charge not yet brought to trial, the issue as to the legality of his continued pretrial detention has been mooted, and it therefore becomes unnecessary to resolve the constitutional issues presented."); Fassler v. United States, 858 F.2d 1016, 1018 (5th Cir.1988) (holding that federal pretrial detainee's habeas corpus application was rendered moot by his conviction); Barker v. Estelle, 913 F.2d 1433, 1440 (9th Cir.1990) (a petitioner's conviction moots the challenge to the prior detention even if the petitioner is currently incarcerated under the conviction itself); Williams v. Slater, No. 08-4047, 317 F.Appx. 723, 724 (10th Cir. June 20, 2008) (unpublished) (same).

Magistrate Judge Boland further instructed Mr. Ippolito in the August 22 Order that if his intent was to challenge the validity of his conviction in Jefferson County District Court Case No. 12CR2252, he must proceed under 28 U.S.C. § 2254, not § 2241. ( See ECF No. 25). Magistrate Judge Boland further warned him that if he filed a § 2254 Application, it must comply with Fed.R.Civ.P. 8 and Rule 4 of the Rules Governing Habeas Corpus, must not exceed 30 pages, and must be typed or written legibly. ( Id. ). Magistrate Judge Boland ordered Mr. Ippolito to file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 that complied with the August 22 Order within thirty (30) days.[2] ( Id. ). Mr. Ippolito filed a § 2254 Application on September 17, 2014 (ECF No. 26), along with a document titled "Proof of Exhaustion Requirement Pursuant to 2254(B)(1)." (ECF No. 28).

Magistrate Judge Boland thereafter reviewed the § 2254 Application in an October 6, 2014 Order and found it to be deficient for the following reasons: (1) the Application improperly named as Respondents the State of Colorado: Department of Corrections/Division of Adult Parole, John W. Hickenlooper (Colorado Governor), Rick Raemisch (CDOC Executive Director), and Walt Pesterfield (Director of Adult Parole, CDOC); the only proper respondent to a habeas corpus action is the petitioner's immediate custodian, see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004); (2) instead of requesting immediate release from custody, which is the traditional function of the writ, see Preiser v. Rodriguez, 411 U.S. 475, 484 (1973), Mr. Ippolito asks the Court to enjoin the "parties" from "Retaliation & Harassment of any type as a result of this action" (ECF No. 26, at 28); and, (3) it is questionable whether the § 2254 Application complies with the requirements of Fed.R.Civ.P. 8. ( See ECF No. 29).

Notwithstanding, Magistrate Judge Boland declined to enter an order directing Mr. Ippolito to file an amended application to cure the deficiencies. Instead, on October 6, 2014, Magistrate Judge Boland ordered Mr. Ippolito to show cause in writing, within thirty (30) days, why the Application should not be dismissed as procedurally defaulted. (ECF No. 29).

The Court may raise the issue of procedural default sua sponte so long as the petitioner is afforded notice and an opportunity to respond. See Hardiman v. Reynolds, 971 F.2d 500, 505 (10th Cir. 1992). Mr. Ippolito did not respond to the order to show cause by the court-ordered deadline. The Court assumes that Applicant received the October 6 Order because the copy of the order mailed to Plaintiff at the address on file was not returned to the Court as undeliverable.

II. Applicable legal standards

Mr. Ippolito's pro se filings are afforded a liberal construction. 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 does not act as an advocate for a pro se litigant, see Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed as procedurally barred.

Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. See O'Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). 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). The petitioner must have presented his claim through one "complete round of the State's established appellate review process." Woodford v. Ngo, 548 U.S. 81, 92 (2006) (citations and internal quotation marks omitted); see also Dever, 36 F.3d at 1534. "The exhaustion requirement is not one to be overlooked lightly." Hernandez v. Starbuck, 69 F.3d ...


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