United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Applicant, Phillip Mandrell, is in the custody of the Colorado Department of Corrections (CDOC) at the correctional facility in Sterling, Colorado. Mr. Mandrell has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF No. 1). He has paid the $5.00 filing fee.
On December 22, 2014, Magistrate Judge Gordon P. Gallagher entered an order directing the Respondent Warden to file a Preliminary Response addressing the affirmative defenses of failure to exhaust state court and administrative remedies, and the timeliness of the Application. (ECF No. 12). Following a Second Order to File Preliminary Response (ECF No. 16), Respondent Warden filed a Preliminary Response on January 26, 2015. (ECF No. 17). Mr. Mandrell filed a Reply on February 3, 2015. (ECF No. 18).
The Court must construe the Application liberally because Mr. Mandrell 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 § 2241 Application will be dismissed.
Mr. Mandrell asserts three claims in the § 2241 Application: (1) that his current incarceration pursuant to an illegal three-year mandatory parole term is unconstitutional (ECF No. 1, at 9); (2) that he was resentenced on April 9, 2014 in Las Animas County, Colorado, District Court Case No. 08CR193, but the CDOC has refused to implement the amended mittimus reflecting the six-month sentence reduction and continues to have him "serving the illegal parole sentence." (ECF No. 1, at 7, 10; see also ECF No. 17-1, at 5); and, (3) the Las Animas District Court has sentenced him multiple times for the same offense in Case No. 08CR193, in violation of due process and double jeopardy principles. (ECF No. 1, at 12). Applicant also claims that the CDOC has failed to award him good and earned time credits to which he is entitled under Colorado statutes. (Id. at 11). For relief, he asks the Court to order the CDOC to deduct six months from the remainder of his sentence in Las Animas County District Court Case No. 08CR193, as ordered in the amended mittimus, award him good and/or earned time credits to which he is entitled, and order his immediate release from prison.
I. Challenge to Validity of Sentences
Applicant's challenges to the validity of his state court sentences in claims one and three are not cognizable in this § 2241 proceeding. "Petitions under § 2241 are used to attack the execution of a sentence, see Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.1996), in contrast to § 2254 habeas... proceedings, which are used to collaterally attack the validity of a conviction and sentence." McIntosh v. United States Parole Com'n, 115 F.3d 809, 811 (10th Cir. 1997); see also Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (stating that a § 2241 petition attacks the execution of a sentence rather than its validity).
Accordingly, if Mr. Mandrell wishes to pursue claims challenging the validity of his state court sentences, he must do so in a separate proceeding brought pursuant to 28 U.S.C. § 2254, after exhausting his available state court remedies. See § 2254(b)(1)(A). Claims one and three will be dismissed without prejudice.
II. Exhaustion of State Court Remedies
Respondents argue in the Preliminary Response that Mr. Mandrell has failed to exhaust available state court remedies for his claim challenging the CDOC's refusal to execute his sentence in accordance with the amended mittimus issued by the state district court in April 2014, in Las Animas County District Court Case No. 08CR193. (ECF No. 17).
A habeas petitioner under § 2241 is required to exhaust both state court and administrative remedies. Hamm v. Saffle, 300 F.3d 1213, 1216 (10th Cir. 2002); Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). The petitioner "must have first fairly presented the substance of his federal habeas claim to state courts." Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002); Picard v. Connor, 404 U.S. 270, 278 (1971) ("Fair presentation" requires that the "substance of a federal habeas corpus claim" must have been presented to the state courts.). The exhaustion requirement is satisfied if the petitioner presents 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). "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 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).
The state court records attached to the Preliminary Response reflect that Mr. Mandrell filed a state post-conviction motion pursuant to Colo. Crim. P. Rule 35(c) in Case No. 08CR193, which was denied by the state district court on December 9, 2014, and Applicant did not file an appeal. (ECF No. 17, at 3; No. 17-1, at 4-5). Applicant also filed Colo. Crim. P. Rule 35 motions in two other pending state criminal cases, which were denied by the state district courts and not appealed by Applicant. (ECF No. 17, at 3; ECF No. 17-2, 17-3). However, these records serve only to demonstrate that Applicant may not have exhausted state court remedies for claims challenging the validity of his state court sentences. As discussed above, those claims are not cognizable in this § 2241 proceeding.
At issue here is whether Applicant exhausted state court remedies for his claim that the CDOC is not executing his sentence correctly. Under Colorado law, Applicant has an available state court remedy in the nature of a mandamus proceeding. See, e.g., Outler v. Norton, 934 P.2d 922 (Colo.App. 1997) (mandamus action under Colo. R. Civ. P. 106(a)(2), over-ruled on other grounds by Meredith v. Zavaras, 954 P.2d 597 (Colo. 1998); see also People v. Dixon, 133 P.3d 1176, 1177 (Colo. 2006) (recognizing that Colorado Appellate Rule 21 provides an appropriate procedural mechanism, absent any other adequate remedy, to mandate compliance by the department of corrections with trial court sentencing orders.); People v. Ostuni, 58 P.3d 531, 533 (Colo. 2002) (same).
Mr. Mandrell does not allege that he has sought mandamus relief in the Colorado courts. It appears that Mr. Mandrell did file an action against the CDOC in Logan County, Colorado, District Court Case No. 2015CV2, on January 14, 2015. (ECF No. 17-5). However, it is not clear what type of action Applicant initiated, and, in any event, there has been no ruling in that case. Applicant's allegations that he has administrative grievances with the CDOC ( see ECF No. 1, at 9, 11), do not satisfy the requirement that he exhaust available state court remedies. Further, Mr. Mandrell was advised in the Step 3 ...