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Case 1:13-cv-01935-LTB Document 8 Filed 10/25/13 USDC Colorado Page 1 of 4



Civil Action No. 13-cv-01935-BNB




JOHN W. SUTHERS, The Attorney General of the State of Colorado,



Applicant, Emanuel V. Pittman, is in the custody of the Colorado Department of

Corrections and currently is incarcerated at the correctional facility in Limon, Colorado.

Mr. Pittman, acting pro se, initiated this action by filing an Application for a Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2254. Mr. Pittman has been granted leave to

proceed pursuant to 28 U.S.C. § 1915.

On July 30, 2013, Magistrate Judge Boyd N. Boland ordered Respondent

Suthers to file a Pre-Answer Response to the habeas corpus application and address

the affirmative defenses of timeliness and exhaustion of state court remedies. On

August 20, 2013, pursuant to the Court’s directive, Respondent Suthers filed a

Response. Mr. Pittman did not file a Reply.

The Court must construe Mr. Pittman’s Application liberally because he is a pro

se litigant. 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 a pro se

Case 1:13-cv-01935-LTB Document 8 Filed 10/25/13 USDC Colorado Page 2 of 4

litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the

action will be dismissed.

Mr. Pittman asserts that his due process rights were violated when he was

arrested on February 24, 2013; denied an attorney at the subsequent parole revocation

hearing; and returned to prison as a result of the hearing. Mr. Pittman seeks

appointment of counsel to assist in a new evidentiary hearing.

On May 5, 2011, Mr. Pittman was found guilty of failing to register as a sex

offender, a class five felony, and was sentenced to three years plus a mandatory two

year parole on May 6, 2011. Resp., ECF No. 7-1, at Ex. A. Mr. Pittman subsequently

was subject to a parole revocation hearing on March 14, 2013. In the Application, Mr.

Pittman asserts that he attempted to appeal the revocation but was denied an appeal as

beyond the time limit. See Application at 10. Respondent Suthers, however, asserts

that a challenge of the procedures used at a parole revocation hearing is reviewable in

state court pursuant to Colo. R. Crim. P. 35(c)(VII). Resp. at 4. A Rule 35 motion must

be filed in the court that rendered the sentence under Colo. R. Crim. P. 35(c)(3). Id. at

5. Mr. Pittman does not disagree with Respondent’s assertions.

Relying on Tenth Circuit case law, Respondent Suthers also asserts that

challenges to the procedures used in denying or revoking parole are properly brought

under 28 U.S.C. § 2241. Resp. at 2. Nonetheless, regardless of the statutory authority

for his habeas corpus claim, whether the action is asserted pursuant to § 2241 or

§ 2254, Mr. Pittman is required to exhaust state remedies before he may pursue his

federal constitutional claims in a habeas corpus action in this Court. See 28 U.S.C.


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§ 2254(b)(1); Montez v. McKenna, 208 F.3d 862, 866 (10th Cir. 2000) (citing Coleman

v. Thompson, 501 U.S. 722, 731 (1991). Like other habeas applicants, a § 2241

applicant fulfills the requirement to exhaust state remedies once the issue has been

“fairly presented to the state courts.” Picard v. Connor, 404 U.S. 270, 275 (1971);

Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). This requirement “is satisfied if

the federal issue has been properly presented to the highest state court.” Dever v. Kan.

State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion requirement is

not one to be overlooked lightly.” Hernandez v. Starbuck, 69 F.3d 1089, 1092 (10th Cir.

1995). A state prisoner bringing a federal habeas corpus action bears the burden of

showing that he has exhausted all available state remedies. See Miranda v. Cooper,

967 F.2d 392, 398 (10th Cir. 1992).

Furthermore, the “substance of a federal habeas corpus claim” must have been

presented to the state courts in order to satisfy the fair presentation requirement.

Picard, 404 U.S. at 278; see also Nichols v. Sullivan, 867 F.2d 1250, 1252 (10th Cir.

1989). Although fair presentation does not require a habeas corpus applicant to cite

“book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal quotation

marks omitted), “[i]t is not enough that all the facts necessary to support the federal

claim were before the state courts,” Anderson v. Harless, 459 U.S. 4, 6 (1982) (per

curiam). A claim must be presented as a federal constitutional claim in the state court

proceedings in order to be exhausted. See Duncan v. Henry, 513 U.S. 364, 365-66

(1995) (per curiam).

“A state prisoner is generally barred from obtaining federal habeas relief unless

the prisoner has properly presented his . . . claims through one ‘complete round of the


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State’s established appellate review process.’” Woodford v. Ngo, 548 U.S. 81, 92

(2006) (quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).

Based on the above findings, Mr. Pittman has failed to respond to the affirmative

defense raised in this action, and he fails to demonstrate he has fairly presented his due

process claim to any state court. Therefore, the action will be dismissed for failure to

exhaust state remedies.

Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal

from this Order is not taken in good faith, and, therefore, in forma pauperis status will be

denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438

(1962). If Mr. Pittman files a notice of appeal he must also pay the full $455 appellate

filing fee or file a motion to proceed in forma pauperis in the United States Court of

Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.

Accordingly, it is

ORDERED that the Application is denied and the action dismissed without

prejudice for failure to exhaust state court remedies before seeking federal court

intervention. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is


DATED October 25, 2013, at Denver, Colorado.


s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court