Opinion
Civil Action No. 12-cv-01905-BNB
09-12-2012
LEO APODACA, Applicant, v. ANGELO MEDINA, Respondent.
ORDER OF DISMISSAL
Applicant, Leo Apodaca, is a prisoner in the custody of the Colorado Department of Corrections (DOC) at the Fremont Correctional Facility in Cañon City, Colorado. Mr. Apodaca initiated this action by filing pro se a Petition for Writ of Habeas Corpus (ECF No. 5) in which he challenged the legality of his continued incarceration. On August 22, 2012, Mr. Apodaca filed an amended pleading (ECF No. 5) on the court-approved Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 form. Mr. Apodaca claims in his amended pleading that he was released from DOC custody in 2007 when he was transferred to a private prison in Oklahoma to serve his Colorado sentence. As relief Mr. Apodaca seeks to be released from custody.
The Court must construe the amended pleading liberally because Mr. Apodaca 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. For the reasons stated below, the action will be dismissed.
As indicated above, Mr. Apodaca's claims in this action arise out of his transfer to a private prison in Oklahoma in 2007 to serve his Colorado sentence. Mr. Apodaca was returned to Colorado to serve his sentence in 2008. Mr. Apodaca specifically claims that his federal constitutional rights were violated because no valid contract existed to authorize his transfer to a private prison in Oklahoma. He also alleges in support of his claims that his transfer violated Colorado state law. Mr. Apodaca summarizes his claims as follows:
The fraudulent and unenforceable "contract" and "agreement" as argued herein, coupled with the lack of any lawful warrant for the Applicant'[s] arrest and or detainment, and the unconditional release of the Applicant by the CDOC to TransCorp America, constitutes a lawful relinquishment of all official custody of the Applicant by the CDOC, and mandates his immediate release.(ECF No. 5 at 20.)
To the extent Mr. Apodaca is claiming that he is entitled to relief based on violations of Colorado state law, those claims are not cognizable in this federal habeas corpus action. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). Mr. Apodaca's federal constitutional claims also lack merit because no provision of the Constitution or any other federal law is violated by the transfer of an inmate from one state to another. See id. at 865-66; see also Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) ("Under Montez, the fact that an inmate is transferred to, or must reside in, a private prison, simply does not raise a federal constitutional claim"). Therefore, the action will be dismissed.
Furthermore, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be 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. Apodaca files a notice of appeal he also must 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 Petition for Writ of Habeas Corpus (ECF No. 1) and the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 5) are denied and the action is dismissed. It is
FURTHER ORDERED that no certificate of appealability will issue because Applicant has not made a substantial showing of the denial of a constitutional right. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.
DATED at Denver, Colorado, this 12th day of September, 2012.
BY THE COURT:
______________________________
LEWIS T. BABCOCK, Senior Judge
United States District Court