Opinion
Civil Action No. 19-cv-00865-LTB-GPG
05-15-2019
JESUS RODRIGUEZ-ORONA, Applicant, v. THE PEOPLE OF THE STATE OF COLORADO, and USA DISTRICT COURT, Respondents.
RECOMMENDATION REGARDING DISMISSAL
This matter comes before the Court on the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 8) ("the Application") filed pro se by Applicant on April 29, 2019. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 11).
"(ECF # 8)" 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 this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). --------
The Court must construe the Application filed by Applicant 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 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.
I. BACKGROUND
Applicant Jesus Rodriguez-Orona alleges he is a foreign national of Mexico and a convicted and sentenced state prisoner currently confined at the Weld County Jail in Greeley, Colorado. Proceeding pro se, he filed an Application for a Writ of Habeas Corpus under 28 U.S.C. § 2241 (ECF No. 8) and paid the $5.00 filing fee (ECF No. 6).
Applicant asserts in the Application that the "State Court lacked jurisdiction over the person in state custody." See ECF No. 8 at 2. He requests that "my sentence with the State of Colorado County of Weld be ran concurrent with any sentence imposed by US Marshals of United States of America" and seeks to prevent "subsequent extradition proceedings." Id. at 4.
A review of this Court's CM/ECF docketing system indicates that Applicant has a pending federal criminal case, United States v. Jesus Guillermo Rodriguez-Orona, Criminal Action No. 18-cr-00558-REB (D. Colo. Dec. 4, 2018).
II. DISCUSSION
The Tenth Circuit has held that 28 U.S.C. § 2241 establishes limited jurisdiction in the federal district court to consider habeas corpus petitions filed by pretrial detainees. Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007) (granting pretrial relief under § 2241 to state prisoner, who had been denied relief by the State's highest court, on ground that retrial would violate Double Jeopardy Clause). However, the Tenth Circuit has further explained "that § 2241 is not a proper avenue of relief for federal prisoners awaiting federal trial." Medina v. Choate, 875 F.3d 1025, 1029 (10th Cir. 2017). As the Tenth Circuit previously noted:
To be eligible for habeas corpus relief under § 2241, a federal pretrial detainee generally must exhaust other available remedies. See Fassler v. United States, 858 F.2d 1016, 1018 (5th Cir. 1988); United States v. Pepito, 861 F.2d 1006, 1009 (7th Cir. 1987); Moore v. United States, 875 F. Supp. 629, 623 (D. Neb. 1994). The reasons for this requirement are rooted not in comity (as is the case with state prisoners), but in concerns for judicial economy. Allowing federal prisoners to bring claims in habeas proceedings that they have not yet, but still could, bring in the trial court, would result in needless duplication of judicial work and would encourage 'judge shopping.'"Hall v. Pratt, 97 Fed. Appx. 246, 247-48 (10th Cir. 2004) dismissing § 2241 petition filed by federal pretrial detainee alleging violation of the Speedy Trial Act, his Sixth Amendment right to a speedy trial, and his Fifth Amendment due process rights because he failed to exhaust available remedies in the criminal action); Chandler v. Pratt, 96 Fed. Appx. 661, 662 (10th Cir. 2004) ("To allow petitioner to bring the same claims before another judge in a collateral proceeding would not only waste judicial resources, but would encourage judge shopping."); Thompson v. Robinson, 565 Fed. Appx. 738, 739 (10th Cir. 2014) (dismissing claims challenging pretrial detention and ongoing federal criminal case for failure to exhaust available remedies); Ray v. Denham, 626 Fed. Appx. 218, 219 (10th Cir. 2015) (same).
To the extent Applicant's claim and request for relief relate to his ongoing federal criminal case, he is limited to proceeding by motion to the trial court, followed by a possible appeal after judgment, before resorting to habeas relief. See Medina, 875 F.3d at 1028. Applicant cannot currently proceed under 28 U.S.C. § 2241, and he has failed to exhaust available remedies.
To the extent Applicant is attempting to challenge his state court conviction and sentence, he must pursue his claims in a new action pursuant to 28 U.S.C. § 2254. "[T]he essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). "Petitions under § 2241 are used to attack the execution of a sentence, . . . [while] § 2254 habeas and § 2255 proceedings, . . . are used to collaterally attack the validity of a conviction and sentence." McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th Cir. 1997); see also Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (discussing distinction between habeas corpus claims pursuant to § 2241 and conditions of confinement claims raised in civil rights actions). An application for a writ of habeas corpus may not be granted unless it appears that the applicant has exhausted state remedies or that no adequate state remedies are available or effective to protect the applicant's rights. Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is satisfied once the federal claim has been fairly presented to the state courts. See Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the federal issue be presented properly "to the highest state court, either by direct review of the conviction or in a postconviction attack." Dever, 36 F.3d at 1534.
III. 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. § 2241 (ECF No. 8) be denied and the action dismissed without prejudice.
DATED at Grand Junction, Colorado, this 15th day of May, 2019
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge