Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Melnick v. Colorado State Board of Parole

United States District Court, D. Colorado

May 16, 2019

HUNTER ADAM MELNICK, Applicant,
v.
COLORADO STATE BOARD OF PAROLE, Respondent.

          RECOMMENDATION REGARDING DISMISSAL

          Gordon P. Gallagher, United States Magistrate Judge

         This 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)[1]. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 11)[2].

         The 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.

         The 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.

         I. Factual and Procedural Background

         Applicant 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).

         In the 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).

         The 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 actions.

         Respondent 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).

         In 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 1).

         II. Exhaustion of Available State Court Remedies

         A 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).

         A 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 are exhausted).

         In the 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.