Valerga v. Raemisch

• Decision Date: 07 March 2016
• Docket Number: Civil Action No. 15-cv-02648-GPG
• Parties: DEMETRIO A. VALERGA, Applicant v. RICK RAEMISCH, Respondent.
• Court: U.S. District Court — District of Colorado

DEMETRIO A. VALERGA, Applicant
v.
RICK RAEMISCH, Respondent.

Civil Action No. 15-cv-02648-GPG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

March 7, 2016

ORDER OF DISMISSAL

Applicant Demetrio A. Valerga is in the custody of the Colorado Department of Corrections (DOC) and currently is detained at the Jefferson County Detention Facility in Golden, Colorado. Applicant, acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. ECF No. 1. Applicant has paid the $5 filing fee.

On December 8, 2015, Magistrate Judge Gallagher directed Respondent to file a Preliminary Response to the Application that addresses the affirmative defenses of timeliness and exhaustion of state court remedies.

On December 29, 2015, Respondent filed a Preliminary Response, ECF No. 6. Applicant subsequently filed two pleadings, one titled, "Argument," ECF No. 10, and the other a Motion to Grant Writ of Habeas Corpus, ECF No. 11. The Court will construe the pleadings together as a Reply to the Preliminary Response.

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The Court must construe the Application and Reply liberally because Applicant is a pro se litigant. 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 act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the action will be dismissed.

Applicant asserts that that he was released from immigration custody on July 11, 2014, because the Immigration Customs Enforcement Agency was unable to secure travel papers from Argentina within ninety days. Applicant further asserts that he now is being held because he has been charged with two class five felonies, but claims this hold is illegal and his parole should be "discharged" pursuant to Colo. Rev. Stat. 17-22.5-404.7. ECF No. 1, at 9.

Respondent argues that the Application should be denied because Applicant has failed to exhaust state court remedies. Respondent contends that Applicant should have presented his claims to the Colorado state courts in a petition for a writ of habeas corpus prior to pursuing them in this Court, see Colo. Dep't of Corrs., Parole Division, v. Madison 85 P.3d 542, 543 (2004) or in a mandamus action, Vernier v. Colo. Dep't of Corrs, 77 P.3d 875, 877-78 (Colo. App. 2003); Colo. R. Civ. P. 106(a)(2). ECF No. 6 at 3-4. Respondent further contends that counsel has reviewed the Colorado State Court Data Access database, which is the Colorado state court's official database containing records of all cases filed in Colorado state courts; but he found no record of any civil habeas corpus petitions submitted by Applicant, nor any record of a civil mandamus by Applicant. ECF No. 6 at 4; ECF No. 7. Respondent concludes that dismissal is proper for failure to exhaust state court remedies.

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In the Argument, construed as part of Applicant's Reply, he concedes that he has not exhausted his state court remedies, but he asserts that he filed a state habeas action in the Jefferson County District Court on December 23, 2015. ECF No. 10 at 2. Applicant states that he believes the Jefferson County District Court will rule in his favor, but if not he asks that this Court not deny him when he reapplies in the future. Id. Applicant further states that if this Court denies this action "so be it." Id. at 3. Applicant also asks that the Court provide Respondent with a copy of ECF No. 10. The Court finds Applicant's request for a copy to be sent to Respondent is unnecessary.

In addition, in the Motion to Grant Writ of Habeas Corpus, filed on January 27, 2016, Applicant argues that because he filed his state habeas action over thirty days prior, and the state court has not responded, he now asks this Court to "step-in" if the state court does not respond within a week. ECF No. 11 at 1-2.

A habeas petitioner seeking...