UNITED STATES COURT OF APPEALS
Filed 7/3/96
FOR THE TENTH CIRCUIT
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PAUL LUNA VASQUEZ, )
)
Petitioner-Appellant, )
)
v. ) No. 96-1083
) (D.C. No. 95-S-2966)
DONICE NEAL, and ATTORNEY GENERAL ) (Dist. of Colo.)
FOR THE STATE OF COLORADO, )
)
Respondents-Appellees. )
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ORDER AND JUDGMENT*
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Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.
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After examining the briefs and the appellate record, this
panel has determined unanimously to honor the parties’ request for
a decision on the briefs without oral argument. See Fed. R. App.
P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered
submitted without oral argument.
Petitioner-appellant Paul Luna Vasquez (Vasquez) is a
convicted felon incarcerated at the Limon Correctional Facility
under the jurisdiction of the State of Colorado Department of
Corrections (DOC). This matter is before us on Vasquez’s pro se
*
This order and judgment is not binding precedent, except
under the doctrines of law of the case, res judicata, and
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 Tenth Cir. R. 36.3.
motions for a certificate of probable cause to appeal the district
court’s order of dismissal of his petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 22541 and to proceed on appeal
without prepayment of costs or fees. A detailed recitation of
Vasquez’s litigative history is necessary for our review.
On November 16, 1992, Vasquez, appearing pro se, filed a 42
U.S.C. § 1983 civil rights complaint in the federal district court
for the District of Colorado, Vasquez v. Thurlow, et al., No. 92-
N-2264, against Donna Thurlow (Thurlow), DOC Time Computation
Officer, A. C. Lusby (Lusby), Weld County Assistant District
Attorney, and John R. Enright (Enright), Colorado Board of Parole.
Vasquez alleged that he had been denied equal protection and due
process of law because the DOC computed sentences differently for
“angelos” than it did for “chicanos, hispanics, and mexicans.”
(Complaint at B. 1). The district court dismissed the case with
prejudice.
1
The Antiterrorist and Effective Death Penalty Act of
1996 (Act), Pub. L. No. 104-132, 110 Stat. 1214 (1996), which
became effective April 24, 1996, altered the procedures for
habeas corpus appeals. As amended, the law instructs that we may
issue a certificate of appealability, formerly a certificate of
probable cause, only if the applicant has made a substantial
showing of the denial of a constitutional right. Lennox v.
Evans, No. 96-6041, 1996 WL 343632 at *4 (10th Cir. June 24,
1996). Prior to the Act, we were to issue a certificate of
probable cause upon a substantial showing of the denial of an
important federal right. Barefoot v. Estelle, 463 U.S. 880, 893
(1983). Inasmuch as the district court’s order and motion for
certificate of probable cause were entered and filed prior to
April 24, 1996, we are governed by the pre-Act standards.
- 2 -
On August 15, 1994, Vasquez, appearing pro se, filed a second
§ 1983 civil rights complaint in the federal district court for the
District of Colorado, entitled Vasquez v. Leavitt, et al., No. 94-
S-1899, against Paul Leavitt (Leavitt), DOC Parole Supervisor, John
P. Dolan (Dolan), DOC Parole Officer, David Sanchez (Sanchez),
Colorado Board of Parole, Lusby, and Thurlow. Vasquez alleged
that he had completed his sentence and that he had been denied
equal protection of the law because other inmates had been treated
differently in that their sentences had been discharged.
The magistrate judge found that the case should be dismissed
on the ground of res judicata and the controlling statute of
limitations. The magistrate judge also found that although
Vasquez’s § 1983 “could be broadly construed to be seeking habeas
corpus relief,” (No. 95-1062, R., Vol. I, Tab 23 at 5 n.1), Vasquez
had failed to exhaust state remedies, because “Colo. R. Crim. P.
35(c)(2)(VII) provides that a motion may be filed with the trial
court seeking release if a sentence has been fully served.” Id.
The district court adopted the magistrate judge’s
recommendation and dismissed the case, finding that “the Plaintiff
has presented no comprehensible basis for his allegation that his
sentence should already have been discharged. Finally, this
complaint raises the same issues that were litigated in this
Plaintiff’s previous complaint in Case No. 92-N-2264.” (R., Ex. 27
at 2).
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On November 29, 1995, Vasquez, appearing pro se, filed a
petition for a writ of habeas corpus in the district court.
Vasquez named Donice Neal, DOC, and the Attorney General of
Colorado, as respondents. Vasquez alleged, inter alia, that he
had served all of his sentence and that he should be released from
custody.
On January 5, 1996, the magistrate judge entered a
recommendation that Vasquez’s petition be dismissed. The
magistrate judge found that Vasquez v. Thurlow, et al., No. 92-N-
2264, was on appeal and that “[p]etitioner’s claim that his
sentence has been discharged has been reviewed and denied in 94-S-
1899. Petitioner is barred from relitigating the issue in this
case by the doctrine of res judicata.” (R., Ex. 13 at 3) (emphasis
original).
On February 23, 1996, the district court, following de novo
review, entered an order adopting the recommendation of the
magistrate judge and dismissing Vasquez’s petition.2 On March 8,
1996, the district court entered an order denying Vasquez a
In so doing, the district court accepted the magistrate
2
judge’s conclusion that Vasquez was barred from relitigating the
issue in this case by the doctrine of res judicata. However,
inasmuch as the parties in Vasquez’s § 1983 actions were not
the same parties as in his habeas action, the doctrine of res
judicata does not apply. See Northern Natural Gas Co. v. Grounds,
931 F.2d 678, 681 (1991)(“Under of res judicata . . . a final
judgment on the merits of an action precludes the parties or
their privies from relitigating issues that were or could have
been raised in the prior action.”).
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certificate of probable cause.
On March 14, 1996, Vasquez filed a motion for a certificate of
probable cause in this court, and on March 19, 1996, he filed an
amended motion for a certificate of probable cause in which he
alleged, inter alia, that he had “raised substantial issues
concerning whether or not he has discharged the entire sentence
imposed by the state courts.” (R., Amended Motion for Certificate
of Probable Cause at 1). On April 8, 1996, Vasquez filed a
motion for leave to proceed on appeal without prepayment of costs
or fees. We grant both motions in order to address Vasquez’s
allegations of error on the merits.
On appeal, Vasquez contends that the district court erred when
it accepted the magistrate judge’s recommendation and dismissed his
habeas petition on the basis of his two § 1983 actions.
We review questions of law de novo. Estate of Holl v.
Internal Revenue Commissioner, 967 F.2d 1437, 1438 (10th Cir.
1992), and we are not constrained by the district court’s
conclusions. FDIC v. Bank of Boulder, 911 F.2d 1466, 1469 (10th
Cir. 1990), cert. denied, 499 U.S. 904 (1991).
In Heck v. Humphrey, ___ U.S. ___, 114 S. Ct. 2364, 2369
(1994), the Court held that “habeas corpus is the exclusive remedy
for a state prisoner who challenges the fact or duration of his
confinement and seeks immediate or speedier release, even though
such a claim may come within the literal terms of § 1983.” “[W]hen
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a state prisoner is challenging the very fact or duration of his
physical imprisonment, and the relief he seeks is a determination
that he is entitled to immediate release or a speedier release from
that imprisonment, his sole remedy is a writ of habeas corpus.”
Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). A § 1983 action is
not “a permissible alternative to the traditional remedy of habeas
corpus.” Id. at 500. Richards v. Bellmon, 941 F.2d 1015, 1018
(10th Cir. 1991).
“A threshold question that must be addressed in every habeas
case is that of exhaustion.” Harris v. Champion, 15 F.3d 1538,
1554 (10th Cir. 1994). Federal habeas corpus relief is not
available to a state prisoners “unless it appears that the
applicant has exhausted the remedies available in the courts of the
State, or that there is either an absence of available State
corrective process or the existence of circumstances rendering such
process ineffective to protect the rights of the prisoner.” 28
U.S.C.A. § 2254(b).
Section 2254 requires a “plaintiff to exhaust his state
remedies prior to seeking habeas relief in federal court.” Smith
v. Maschner, 899 F.2d 940, 951 (10th Cir. 1990). Here, the
magistrate judge observed in his recommendation in Vasquez’s second
§ 1983 action, Vasquez v. Leavitt, No. 94-S-1899, that Vasquez had
“failed to exhaust his state remedies.” (ROA, 95-1062, Tab 23 at
5 n.1). The district court adopted the magistrate judge’s
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recommendation. Id., Tab 27 at 3.
We cannot ascertain from the record before us whether Vasquez
exhausted his state remedies by seeking postconviction relief
pursuant to Colo. R. Crim. P. 35(c)(2)(VII) between the time the
magistrate judge entered his recommendation on November 25, 1994,
in Vasquez v. Leavitt, No. 94-S-1899, and the time Vasquez filed
his petition for habeas relief on November 29, 1995. If Vasquez
has not exhausted his state remedies, the district court must
dismiss the § 2254 petition without prejudice so that Vasquez may
exhaust his remedies in state court. If Vasquez has exhausted his
remedies in state court, the district court should vacate its order
of February 23, 1996, dismissing Vasquez’s petition and proceed to
consider his habeas petition.
Remanded for further proceedings consistent herewith.
Entered for the Court:
James E. Barrett,
Senior United States
Circuit Judge