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Delaney v. Williams

United States District Court, D. Colorado

May 20, 2019

LARRY DELANEY, Applicant,
v.
DEAN WILLIAMS, Exec. Director, C.D.O.C., and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1)[1] 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.)[2]

         The 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 1110.

         The 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.

         I. DISCUSSION

         Mr. 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. at 7.)

         On 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.

         As the 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).

         Mr. 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.

         II. RECOMMENDATION

         For the 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.

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Notes:

[1] “(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 ...


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