Helm v. Foster

          ORDER DENYING APPLICATION FOR WRIT OF HABEAS CORPUS

          WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Third Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 16)^[1] (“Third Amended Application”) filed pro se by Applicant Lee Helm on May 14, 2018. On October 15, 2018, the Court entered an order directing Respondent to show cause as to why the Third Amended Application should not be granted (ECF No. 23). Respondent filed a Response to Application for Writ of Habeas Corpus on November 26, 2018 (ECF No. 29), stating that Applicant has been released on parole. Applicant has not filed a Reply or otherwise communicated with the Court (see Docket). Having considered the parties' filings, the Court denies the Third Amended Application and dismisses this action without prejudice as moot.

         I. BACKGROUND

         In 1991, Applicant was sentenced to an indeterminate sentence under the Colorado Sex Offenders Act of 1968. (ECF No. 16; ECF No. 29-1). On May 5, 2017, he commenced this action pro se by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. (ECF No. 1). At that time, he was in the custody of the Colorado Department of Corrections at the Arkansas Valley Correctional Facility in Ordway, Colorado. The Court granted him leave to proceed in forma pauperis. (ECF No. 4). At the Court's direction, on May 14, 2018, Applicant filed the Third Amended Application, which is the operative pleading. (ECF Nos. 15, 16). A detailed procedural history of this action is set forth in the Order entered September 13, 2018. (ECF No. 17).

         In the Third Amended Application, Applicant alleges two claims for relief: 1) the denial of due process with regard to the periodic judicial review aspect of his sentence; and 2) the denial of equal protection because Applicant is due “the same rights as those civily [sic] committed, ” because the sentence related to his underlying crime allegedly has been served. (ECF No. 16 at 2-6). Applicant requests various injunctive relief geared toward judicial review of his confinement, and the primary purpose of the Application appears to be discharge from custody. (Id. at 10).

         In the Response to Application for Writ of Habeas Corpus, Respondent argues the Third Amended Application is moot because, while it was pending, Applicant “completed the custodial portion of his sentence and was released on parole.” (ECF No. 29 at 5). The Parole Board approved his release effective July 19, 2018, for a period of five years on parole. (ECF No. 29-1 at 7). Respondent further argues that, in any event, Applicant's constitutional claims lack merit. (ECF No. 29 at 5-10).

         Review of the docket in this action demonstrates that Applicant has not provided a change of address to the Court as required by Local Rule 5.1(c). His contact information remains his prior place of incarceration at the Arkansas Valley Correctional Facility. Mail directed to Applicant was returned to the Court as undeliverable on September 25 and October 23 and 25, 2018. (ECF Nos. 18, 25, 26). The return envelopes indicate “parole.” (Id.). Since the filing of the Third Amended Application on May 14, 2018, Applicant has not made any other filing on the docket. (See Docket).

         II. STANDARD OF REVIEW

         a. Habeas Corpus

         The remedy of habeas corpus is available when a prisoner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c). The applicant must satisfy the custody requirement at the time the habeas petition is filed. Spencer v. Kemna, 523 U.S. 1, 7 (1998). The traditional function of the writ is “to secure release from illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973); see also McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997). “[T]he types of claims cognizable under § 2241 are those in which an individual seeks either immediate release from, or a shortened period of, physical imprisonment, i.e., placement on parole or in a parole-like custodial setting, or immediate release from, or a shortened period of, custody altogether.” Palma-Salazar v. Davis, 677 F.3d 1031, 1037 n.2 (10th Cir. 2012) (citations omitted).

         Applicant was incarcerated at the time he initiated this action in May 2017. His subsequent release on parole satisfies the statutory “in custody” requirement. Jones v. Cunningham, 371 U.S. 236, 241 (1963) (state prisoner on parole was “in custody” for purposes of § 2241 proceeding).

         b. Pro Se Litigant

         Applicant proceeds pro se. Therefore, the Court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). The Court “cannot take on the responsibility of serving as the litigant's attorney in constructing arguments and searching the record.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). Pro se litigants “must follow the same rules of procedure that govern other litigants.” Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992).

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