United States District Court, D. Colorado
ORDER DENYING APPLICATION FOR WRIT OF HABEAS
WILLIAM J. MARTINEZ UNITED STATES DISTRICT JUDGE
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) (“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.
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).
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).
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).
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).
STANDARD OF REVIEW
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)
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 §
Pro Se Litigant
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).