Stevens v. Sheriff of El Paso County , 15 F. App'x 740 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS AUG 1 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
MICHAEL ROBERT STEVENS,
Petitioner-Appellant,
No. 00-1451
v.
(D.C. No. 00-Z-1685)
(Colorado)
SHERIFF OF EL PASO COUNTY,
COLORADO,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR, McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.
Michael Stevens, a pro se federal prisoner, appeals the district court’s
dismissal of his action under 28 U.S.C. § 2241. Mr. Stevens alleged that he is
presently serving concurrent federal and state sentences and that respondent, the
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
sheriff of El Paso County, Colorado, has lodged a detainer against him regarding
his state sentence. He further alleged that he will be entitled to mandatory release
on his state sentence approximately four months before the expiration of his
federal sentence. He claimed that respondent has refused to transmit the state
court judgment to the Colorado Department of Corrections, and that correction
officials are therefore unable to calculate his release date on the state sentence
and refer him to the parole board at the appropriate time. He seeks the grant of a
conditional writ of habeas corpus directing respondent to either transmit the state
court judgment to the state department of corrections or remove the detainer
lodged against him as a result of the state court conviction.
The district court stated its view that the relief sought by Mr. Stevens is
more in the nature of a request for mandamus relief than a request for the habeas
relief available under section 2241. The court concluded that its jurisdiction
under the federal mandamus statute, 28 U.S.C. § 1361, did not extend to an order
compelling action by a state official and that, assuming the action could be
construed as seeking habeas relief, such relief was not available because Mr.
Stevens had failed to show exhaustion of state remedies. Mr. Stevens appeals,
and applies for a certificate of appealability and for leave to proceed in forma
pauperis.
We agree with the district court that, properly construed, Mr. Stevens’
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action must be read as a request for relief by way of mandamus rather than
through a writ of habeas corpus. We also agree that a federal district court is
without jurisdiction under section 1361 to compel state officials to perform any
duty owed to a plaintiff under state law. Section 1361 by its terms is limited to
actions “to compel an officer or employee of the United States or any agency
thereof to perform a duty.”
Even if we were to construe this proceeding as one properly brought
pursuant to section 2241, Mr. Stevens has failed to make the requisite showing
that he has exhausted his state remedies. Although no statutory exhaustion
requirement applies to section 2241, we have held that “‘federal courts should
abstain from the exercise of [section 2241] jurisdiction if the issues raised in the
petition may be resolved either by trial on the merits in the state court or by other
state procedures available to the petitioner.’” Capps v. Sullivan, 13 F.3d 350, 354
n.2 (10th Cir. 1993) (quoting Dickerson v. Louisiana, 816 F.2d 220, 225 (5th Cir.
1987)). Mr. Stevens makes the bare assertion that no state remedies are available
to him. 1 We observe, however, that the Colorado state courts apparently entertain
requests for mandamus relief from prisoners upon the proper showing. See, e.g.,
1
On appeal, Mr. Stevens complains that because respondent was not
ordered to reply by the district court, it was impossible for him to know what, if
any, state remedy exists. However, Mr. Stevens, as petitioner, is responsible for
demonstrating that the district court could properly exercise jurisdiction under 28
U.S.C. § 2241.
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Meredith v. Zavaras, 954 P.2d 597, 601 (Colo. 1998) (pro se prisoner may seek
writ of mandamus ordering his discharge from incarceration); Bullard v. Dep’t of
Corr., 949 P.2d 999, 1000-01 (Colo. 1997) (pro se prisoner action alleging
entitlement to discharge from incarceration treated as seeking mandamus relief);
Fraser v. Colo. Bd. of Parole, 931 P.2d 560, 562 (Colo. Ct. App. 1996) (pro se
prisoner action alleging parole board failed to exercise statutory duties treated as
action in nature of mandamus). Mr. Stevens had made no showing that he has
pursued this or any other avenue of relief through the state courts. Accordingly,
the district court properly refused to exercise jurisdiction under section 2241.
The district court denied Mr. Stevens’ motions for a certificate of
appealabiltiy and for leave to proceed in forma pauperis and he renews those
motions in this court. We conclude that he has failed to make a substantial
showing of the denial of a constitutional right as required for a certificate of
appealability. See 28 U.S.C. § 2253(c)(2). We also conclude that he has failed to
show this appeal was taken in good faith because he has not shown the existence
of a reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal. See 28 U.S.C. § 1915 and Fed. R. App. P. 24. Accordingly, we
deny leave to proceed in forma pauperis. The appeal is DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Circuit Judge
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