United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
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. § 2254 (ECF No.
filed pro se by Applicant, Larry Delaney, on March
8, 2019. The matter has been referred to this Magistrate
Judge for recommendation (ECF No. 7.)
Court must construe the application liberally because Mr.
Delaney 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 and
the action be dismissed.
Delaney indicates in the application that he is challenging
the validity of his conviction in Denver District Court case
number 93CR150. However, he claims only that his rights to
equal protection and equal access to the courts have been
violated because he is being prevented from filing a petition
in the Colorado Supreme Court pursuant to Rule 21 of the
Colorado Appellate Rules. According to Mr. Delaney,
“any pro-se submission filed with [the Colorado
Supreme] Court is being destroyed by one of the clerks upon
receipt.” (ECF No. 1 at 5.) Mr. Delaney states that the
“[r]elief requested is to require state process to
proceed as allowed or alternatively exempt me from any
further need to present claims for relief to state courts due
to a lack of available state remedies.” (Id.
April 9, 2019, the Court entered an order giving Mr. Delaney
an opportunity to file an amended application within thirty
days if he wishes to assert any federal constitutional claims
challenging the validity of his conviction. Mr. Delaney has
not filed an amended application within the time allowed.
Therefore, the original application is the operative pleading
before the Court.
Court explained to Mr. Delaney in the Court's prior
order, his claim that he is being denied equal protection and
equal access to the courts in connection with state court
postconviction proceedings is not a cognizable habeas corpus
claim because there is no federal constitutional right to
postconviction review in the state courts. See
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). In
other words, a claim of constitutional error that
“focuses only on the State's post-conviction remedy
and not the judgment which provides the basis for [the
applicant's] incarceration . . . states no cognizable
federal habeas claim.” Sellers v. Ward, 135
F.3d 1333, 1339 (10th Cir. 1998); see also
Steele v. Young, 11 F.3d 1518, 1524 (10th
Cir. 1993) (noting that petitioner's challenge to state
“post-conviction procedures on their face and as
applied to him would fail to state a federal constitutional
claim cognizable in a federal habeas proceeding”).
Instead, habeas corpus relief is warranted only if Mr.
Delaney “is in custody in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C.
§ 2241(c)(3). Relief under § 2254 is not available
for violations of state law. See Richmond v. Embry,
122 F.3d 866, 870 (10th Cir. 1997).
Delaney fails to assert a claim that demonstrates his federal
constitutional rights have been violated or that he is
entitled to habeas corpus relief. Furthermore, despite the
specific instructions in the order directing him to file an
amended application, Mr. Delaney has failed to file an
amended application that asserts any federal constitutional
claim challenging the validity of his conviction.
reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1) be denied and
the action be dismissed because Applicant is not asserting
any federal constitutional claims.
 “(ECF # 1)” is an example
of the convention I use to identify the docket number
assigned to a specific paper by the Court's case
management and electronic case filing system (CM/ECF). I use