Opinion
Civil Action No. 05-cv-01846-OES.
November 29, 2005
ORDER TO SUPPLEMENT
Applicant Robert Eugene Valcik is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Buena Vista, Colorado, Correctional Facility. Pursuant to Magistrate Judge O. Edward Schlatter's November 2, 2005, Order to Show Cause, Mr. Valcik filed a Response on November 16. For the reasons stated below, Applicant again will be ordered to file a Supplement to the Response.
In the November 2 Order, Magistrate Judge Schlatter directed Plaintiff to respond and show why the action should not be dismissed for failure to exhaust state-court remedies. Mr. Valcik was instructed that exhaustion requirements are satisfied once the federal claims have been presented fairly to the state courts. Also, he was informed that fair presentation requires that the federal issues be presented properly to the highest state court either by direct review of the conviction or in a postconviction proceeding.
Mr. Valcik raises three claims, including denial of a probation revocation hearing, ineffective assistance of counsel, and illegal sentence. In the Response, Applicant contends that the Application should not be denied for failure to exhaust state-court remedies, because the Colorado Court of Appeals is allowing the state district court to commit perjury and is not making proper rulings. He further argues that the Colorado Supreme Court will not entertain jurisdiction, that he is being held past his mandatory release date, and that all state courts refuse to appoint counsel in his appeal.
Applicant's Response fails to assert with any certainty that he has exhausted his state-court remedies. Therefore, Applicant will be directed to file a Supplement. He is directed to provide to the Court documentation of the direct appeal he filed in Case No. 01-CR-4552 and 04-CR-2784 by providing a dated copy of the opening brief he filed with the Colorado Court of Appeals in the direct appeal. He is instructed to provide to the Court a copy of the Colorado Court of Appeals order denying his appeal on June 28, 2005, and a copy of his appeal to the Colorado Supreme Court that he filed in his direct appeal and which still is pending.
Mr. Valcik also is directed to file with the Court a copy of the postconviction motion that he filed on January 30, 2005, and a copy of the district court's order denying him relief in April 2005. Moreover, Applicant is directed to provide to the Court copies of all state-court orders denying him appointment of counsel and a copy of the order by the Colorado Supreme Court that states the Court will not entertain jurisdiction over his criminal case. Therefore, it is
ORDERED that Mr. Valcik file a Supplement, in keeping with the above instructions within thirty (30) days from the date of this Order. It is
FURTHER ORDERED that the Supplement shall be titled "Supplement to Response to Order to Show Cause" and shall be filed with the Clerk of the Court, United States District Court for the District of Colorado, Alfred A. Arraj United States Courthouse, 901 Nineteenth Street, A105, Denver, Colorado 80294, within thirty (30) days from the date of this Order. It is
FURTHER ORDERED that if Mr. Valcik fails to supplement the Response to the Court's satisfaction, within thirty (30) days from the date of this Order, the Application will be denied and the action will be dismissed without further notice.