Mulberry v. Neet

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 12 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
JEFFREY R. MULBERRY,
Petitioner - Appellant,
vs. No. 00-1477
(D.C. No. 00-Z-1970)
GARY NEET and ATTORNEY (D. Colo.)
GENERAL OF THE STATE OF
COLORADO,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before EBEL, KELLY, and LUCERO, Circuit Judges. **
Jeffrey Mulberry, an inmate appearing pro se, appeals from the denial of his
habeas petition challenging the execution of his sentence. Although Mr. Mulberry
proceeded under 28 U.S.C. § 2254, we have held that a challenge to execution of
state sentence arises under 28 U.S.C. § 2241 See Montez v. McKinna, 208 F.3d
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
862, 865 (10th Cir. 2000). He contends that he is entitled to immediate release,
but that the Colorado Department of Corrections (“CDOC”) will not credit him
with presentence confinement as envisioned by the various state district courts in
which he was sentenced. The federal district court dismissed the petition without
prejudice for failure to exhaust state court remedies. R. Doc. 5 at 4. In his
petition, Mr. Mulberry indicates that he first presented this claim to the El Paso
County District Court in seeking a writ of habeas corpus but that the court
“[n]ever responded and lost record, and pleadings.” R. Doc. 2 at 3. He also
alleges that he unsuccessfully sought a writ of habeas corpus directly from the
Colorado Supreme Court. Id.Plainly, Mr. Mulberry has not demonstrated exhaustion, which he is
required to do under § 2241. Montez, 208 F.3d at 866. In Colorado, habeas
corpus is a limited remedy, and a petitioner must first exhaust his legal remedies,
beginning in the district court. Murray v. Henderson, 964 P.2d 531, 533 (Colo.
1998); Duran v. Price, 868 P.2d 375, 377 (Colo. 1994). Here, Colo. Crim. P. 35
(c) provides a legal remedy for Mr. Mulberry’s claim that his sentence has been
fully served or that he is entitled to more immediate discharge.
Mr. Mulberry is also mistaken that he exhausted state court remedies by
seeking a writ of habeas corpus directly (original jurisdiction) from the Colorado
Supreme Court. We agree with the state that “[u]sing a state procedure that is
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discretionary and limited in scope is not fair presentation” to the state courts, as
required to exhaust state remedies. Aplee. Br. at 10; see also Castille v. Peoples,
489 U.S. 346, 351 (1989); Parkhurst v. Shillinger, 128 F.3d 1366, 1369 (10th Cir.
1997). The mere fact that the Colorado Supreme Court exercised its discretion to
deny the petition in a formulary order does not mean that the court passed on the
merits. Meredith v. Zavaras, 954 P.2d 597, 600 n.5 (Colo. 1998). We recognize
that the Colorado Supreme Court has exercised its mandamus jurisdiction in the
past to require the CDOC to comply with state district court orders concerning
sentencing, but it has done so after the district court passed on the underlying
issues. People v. Grangruth, 990 P.2d 697, 699-700 (Colo. 1999) (presentence
confinement credit); Meredith, 954 P.2d at 598-600 (same); see also Bullard v.
Dep’t of Corrections, 949 P.2d 999, 1000 (Colo. 1997) (discharge order). Those
cases are distinguishable not only because they involve mandamus jurisdiction,
but also because here the state district courts have not passed on Mr. Mulberry’s
claims.
We DENY the motion to proceed in forma pauperis, DENY a certificate of
appealability, see Slack v. McDaniel, 529 U.S. 473, 482 (2000), and DISMISS the
appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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