United States District Court, D. Colorado
CLINTON T. ELDRIDGE, Applicant,
J. OLIVER, Warden, Respondent.
ORDER OF DISMISSAL
LEWIS T. BABCOCK,
Applicant, Clinton T. Eldridge, is a prisoner in the custody of the Federal Bureau of Prisons (BOP) at the United States Penitentiary, Florence ADMAX, in Florence, Colorado. Mr. Eldridge has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) (“the Application”) asserting one claim entitled “Credit for Time Served at Resentencing.” (Id., at 4).
On December 30, 2015, Magistrate Judge Gordon P. Gallagher ordered Mr. Eldridge to show cause why this action should not be dismissed for lack of jurisdiction. (See ECF No. 9). Specifically, Magistrate Judge Gallagher explained that as a District of Columbia Code offender, Mr. Eldridge cannot pursue in this Court a federal habeas corpus claim challenging the validity of the prison sentence he is serving unless he demonstrates that the local remedy (i.e., filing a motion to vacate, set aside, or correct sentence pursuant to D.C. Code § 23-110 in the Superior Court of the District of Columbia) is inadequate and ineffective to test the legality of his detention. (Id., at 2-3). Mr. Eldridge filed his Response (ECF No. 13) on January 14, 2016.
The Court must construe the papers filed by Mr. Eldridge 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action for lack of jurisdiction.
A. Conviction and Sentence
In May 1984, Mr. Eldridge pleaded guilty in the District of Columbia Superior Court (the “Superior Court”) to nine counts of various violent felony charges, and was sentenced on July 19, 1984 to consecutive prison terms totaling 40 to 120 years. (See ECF No. 1, at 2-3, 9-21, Eldridge v. Berkebile, 791 F.3d 1239, 1241 (10th Cir. 2015)). The District of Columbia Court of Appeals sustained Mr. Eldridge’s convictions on eight counts, vacated his conviction on Count 20, a first-degree burglary charge, and remanded for resentencing. (Id.). On July 20, 1993, the Superior Court resentenced Mr. Eldridge on the remaining eight counts to the same aggregate, consecutive prison term of 40 to 120 years by increasing the sentence on Count 24 (a rape charge) from 10 to 30 years to 15 to 45 years. (Id.).
B. Prior Challenges to His Sentence
In 2004, Mr. Eldridge challenged the validity of his sentence by filing in the Superior Court a “Motion to Vacate, Set, Aside or Vacate Sentences and/or Issue a New Judgment and Commitment Order to Credit Time Served on Completed Sentences.” (See ECF No. 13, at 14-16, United States of America v. Eldridge, Criminal Number F-6638-83 (D.C. Superior Court Aug. 4, 2006)). In the motion, Mr. Eldridge asserted that “approximately nine year of time he served between his first sentencing, on July 19, 1984, and his resentencing pursuant to the Court of Appeals’ remand to the trial court, on July 20, 1993, has never been credited to his new sentence.” (Id., at 15). The Superior Court denied the motion on August 4, 2006, finding that Mr. Eldridge’s “sentence was not in violation of the controlling law or procedure and the circumstances of the Defendant do not warrant vacating his sentence.” (Id., at 15-16). The Superior Court further found that “it is clear that the time the Defendant served from July 19, 1984 to July 20, 1993, has been credited to his current sentence.” (Id.).
In 2007, Mr. Eldridge filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the United States District Court for the District of Columbia, which was transferred to the United States District Court for the District of Colorado because he was incarcerated at the United States Penitentiary in Florence, Colorado. (See ECF No. 13, at 17). On August 22, 2007, Senior Judge Zita L. Weinshienk dismissed the habeas corpus proceeding for lack of subject matter jurisdiction because Mr. Eldridge was attacking his 1984 conviction from the Superior Court, and finding that the District of Columbia erroneously transferred the action to the District of Colorado, assuming that he was attacking the execution of his sentence under § 2241, which he was not. (See ECF No. 12 in Eldridge v. Wiley, No. 07-cv-01452-ZLW (D. Colo. July 11, 2007)).
In 2012, Mr. Eldridge filed in the District of Colorado a second petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 claiming that the BOP had not credited against his sentence any of the time he served between July 19, 1984 (the date of his original sentencing) and July 20, 1993 (the date of his resentencing). Senior Judge Lewis T. Babcock dismissed the action for failure to exhaust administrative remedies, and the Tenth Circuit affirmed. See Eldridge, 791 F.3d at 1242.
In 2014, Mr. Eldridge filed in the District of Colorado a third petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 arguing that the BOP had improperly failed to credit his sentence the time he served between the original sentencing in 1984 and resentencing in 1993. Senior Judge Lewis T. Babcock again dismissed the action because he still had not yet exhausted all administrative remedies, and the Tenth Circuit affirmed. See Eldridge, 791 F.3d, at 1242-43.
On August 21, 2014, Mr. Eldridge filed in the District of Colorado a fourth petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 again arguing that the BOP had failed to credit his sentence for the time served between 1984 and 1993, and that the Superior Court had violated his due process rights by resentencing him to a longer prison term on Count 24 in order to achieve the same 40-to-120 year sentence. District Judge Raymond P. Moore denied relief, finding that the BOP properly credited all time after 1984, and that his 40-to-120 year sentence did not violate either the Due Process or Double Jeopardy Clauses. See Eldridge, 791 F.3d, at 1243. The Tenth Circuit affirmed in a published opinion on June 30, 2015. Id., at 1244-46.
On November 13, 2015, Mr. Eldridge filed in this Court his fifth Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 asserting that the Superior Court “failed to award credit for time served” on the “void sentence, count 20 (5 to 15 yrs)” when he was resentenced. (ECF No. 1, at 4). As relief he asks the Court “to award credit for time served towards his new conviction after reversal of count 20, that was used to increased [sic] the ...