United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
P. Gallagher United States Magistrate Judge
matter comes before the Court on the Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No.
(“the Application”) filed pro se by
Applicant on April 29, 2019. The matter has been referred to
this Magistrate Judge for recommendation (ECF No.
Court must construe the Application filed by Applicant
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
Court has reviewed the filings to date. The Court has
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the Application be denied.
Jesus Rodriguez-Orona alleges he is a foreign national of
Mexico and a convicted and sentenced state prisoner currently
confined at the Weld County Jail in Greeley, Colorado.
Proceeding pro se, he filed an Application for a
Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 8)
and paid the $5.00 filing fee (ECF No. 6).
asserts in the Application that the “State Court lacked
jurisdiction over the person in state custody.”
See ECF No. 8 at 2. He requests that “my
sentence with the State of Colorado County of Weld be ran
concurrent with any sentence imposed by U.S. Marshals of
United States of America” and seeks to prevent
“subsequent extradition proceedings.”
Id. at 4.
review of this Court's CM/ECF docketing system indicates
that Applicant has a pending federal criminal case,
United States v. Jesus Guillermo Rodriguez-Orona,
Criminal Action No. 18-cr-00558-REB (D. Colo. Dec. 4, 2018).
Tenth Circuit has held that 28 U.S.C. § 2241 establishes
limited jurisdiction in the federal district court to
consider habeas corpus petitions filed by pretrial detainees.
Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir.
2007) (granting pretrial relief under § 2241 to state
prisoner, who had been denied relief by the State's
highest court, on ground that retrial would violate Double
Jeopardy Clause). However, the Tenth Circuit has further
explained “that § 2241 is not a proper avenue of
relief for federal prisoners awaiting federal trial.”
Medina v. Choate, 875 F.3d 1025, 1029 (10th Cir.
2017). As the Tenth Circuit previously noted:
To be eligible for habeas corpus relief under § 2241, a
federal pretrial detainee generally must exhaust other
available remedies. See Fassler v. United States,
858 F.2d 1016, 1018 (5th Cir. 1988); United States v.
Pepito, 861 F.2d 1006, 1009 (7th Cir. 1987); Moore
v. United States, 875 F.Supp. 629, 623 (D. Neb. 1994).
The reasons for this requirement are rooted not in comity (as
is the case with state prisoners), but in concerns for
judicial economy. Allowing federal prisoners to bring claims
in habeas proceedings that they have not yet, but still
could, bring in the trial court, would result in needless
duplication of judicial work and would encourage ‘judge
Hall v. Pratt, 97 Fed.Appx. 246, 247-48 (10th Cir.
2004) dismissing § 2241 petition filed by federal
pretrial detainee alleging violation of the Speedy Trial Act,
his Sixth Amendment right to a speedy trial, and his Fifth
Amendment due process rights because he failed to exhaust
available remedies in the criminal action); Chandler v.
Pratt, 96 Fed.Appx. 661, 662 (10th Cir. 2004) (“To
allow petitioner to bring the same claims before another
judge in a collateral proceeding would not only waste
judicial resources, but would encourage judge
shopping.”); Thompson v. Robinson, 565
Fed.Appx. 738, 739 (10th Cir. 2014) (dismissing claims
challenging pretrial detention and ongoing federal criminal
case for failure to exhaust available remedies); Ray v.
Denham, 626 Fed.Appx. 218, 219 (10th Cir. 2015) (same).
extent Applicant's claim and request for relief relate to
his ongoing federal criminal case, he is limited to
proceeding by motion to the trial court, followed by a
possible appeal after judgment, before resorting to habeas
relief. See Medina, 875 F.3d at 1028. Applicant
cannot currently proceed under 28 U.S.C. § 2241, and he
has failed to exhaust available remedies.
extent Applicant is attempting to challenge his state court
conviction and sentence, he must pursue his claims in a new
action pursuant to 28 U.S.C. § 2254. “[T]he
essence of habeas corpus is an attack by a person in custody
upon the legality of that custody, and . . . the traditional
function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475,
484 (1973). “Petitions under § 2241 are used to
attack the execution of a sentence, . . . [while] § 2254
habeas and § 2255 proceedings, . . . are used to
collaterally attack the validity of a conviction and
sentence.” McIntosh v. United States Parole
Comm'n, 115 F.3d 809, 811 (10th Cir. 1997); see
also Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th
Cir. 2012) (discussing distinction between habeas corpus
claims pursuant to § 2241 and conditions of confinement
claims raised in civil rights actions). 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. Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The
exhaustion requirement is satisfied ...