United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
P. Gallagher, United States Magistrate Judge
matter comes before the Court on Applicant Hunter Adam
Melnick's Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). The matter has
been referred to this Magistrate Judge for recommendation
(ECF No. 11).
Court must construe Applicant's filings 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 act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
Court has reviewed the filings to date. The Court has
considered the case file and the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the Application be denied and
dismissed without prejudice for failure to exhaust available
state court remedies.
Factual and Procedural Background
is in the custody of the Colorado Department of Corrections.
On March 6, 2019, he filed pro se an Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(ECF No. 1) and a Prisoner's Motion and Affidavit for
Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a
Habeas Corpus Action (ECF No. 3). The Court granted him leave
to proceed under 28 U.S.C. § 1915 (ECF No. 4).
Application, Applicant alleges the Colorado State Board of
Parole (“CSBOP”) did not comply with statutory
“mandatory language” requiring a parole
“reconsideration” hearing within a certain amount
of time. (ECF No. 1 at 1). Applicant relies on Colo. Rev.
Stat. § 17-2-201(14) for this proposition.
(Id.). Applicant states, “[t]he issue is not
that the parole board ‘abused its discretion',
it[‘]s that the parole board ‘has no
discretion' according to the mandatory language of the
statute and that the Applicant has a constitutionally
protected right to due process with that parole
reconsideration.” (Id. at 2). As relief,
Applicant requests “an Order from this Court to the
CSBOP discharging the Applicant from parole which immediately
releases the Applicant.” (Id. at 5).
Court entered an Order to File Preliminary Response (ECF No.
5), directing Respondent to address the affirmative defenses
of timeliness under 28 U.S.C. § 2244(d) and/or
exhaustion of state court remedies that apply to' 2241
filed a Preliminary Response, arguing that Applicant failed
to exhaust state remedies (ECF No. 8). In summary, Respondent
contends that, “to exhaust his state remedies, Melnick
should either have raised this issue in a petition for a writ
of mandamus in an action filed in the Colorado state courts
pursuant to C.R.C.P. 106(a)(2), or he should have filed a
petition for a writ of certiorari regarding the Colorado
Court of Appeals' decision on this issue.”
(Id. at 4).
Reply, Applicant alleges exhaustion is unnecessary for this
Court “to review an abuse of discretion of the
Respondent and the statutory language in question clearly
limits the discretion of the Respondent.” (ECF No. 9 at
Exhaustion of Available State Court Remedies
prisoner in state custody must exhaust all available state
court remedies prior to seeking federal habeas corpus relief.
Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.
2000) (“A habeas petitioner is generally required to
exhaust state remedies whether his action is brought under
§ 2241 or § 2254.”). “The exhaustion
requirement is satisfied if the issues have been
'properly presented to the highest state
court.'” Brown v. Shanks, 185 F.3d 1122,
1124 (10th Cir.1999) (quoting Dever v. Kan. State
Penitentiary, 36 F.3d 1531, 1534 (10th Cir.1994));
see also Castille v. Peoples, 489 U.S. 346, 351
(1989). Where a petitioner has not exhausted state remedies,
“[g]enerally, a federal court should dismiss
unexhausted claims without prejudice so that the petitioner
can pursue available state-court remedies.” Bland
v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006).
habeas petitioner bears the burden of demonstrating that he
has satisfied the exhaustion requirement. McCormick v.
Kline, 572 F.3d 841, 851 (10th Cir. 2009) (internal
citation omitted). A blanket statement that state remedies
have been exhausted does not satisfy this burden. See
Olson v. McKune, 9 F.3d 95, 95 (10th Cir. 1993); see
also Fuller v. Baird, 306 Fed.Appx. 430, 431 n.3 (10th
Cir. 2009) (stating that a bald assertion unsupported by
court records is insufficient to demonstrate state remedies
Application, Applicant is clear that he challenges the
CSBOP's compliance with Colo. Rev. Stat. §
17-2-201(14), which provides, “The board shall consider
the parole of a person whose parole is revoked either for a
technical violation or based on a self-revocation at least
once within one hundred eighty days after the revocation if
the person's release date is more than nine months from
the date of the person's revocation . . .” He