Appellate Case: 21-1289 Document: 010110612998 Date Filed: 12/01/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 1, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
HUNTER ADAM MELNICK,
Petitioner - Appellant,
v. No. 21-1289
(D.C. No. 1:21-CV-00717-LTB-GPG)
JARED POLIS, Governor; KRISTEN (D. Colo.)
HILKEY, Chairperson of CSBOP; DEAN
WILLIAMS, Exec. Director of Prisons;
RYAN LONG, Warden of DRDC,
Respondents - Appellees.
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ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges.
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Petitioner Hunter Adam Melnick, proceeding pro se,1 applied for relief under 28
U.S.C. § 2241 in the District of Colorado. He argues that the Colorado State Board of
Parole violated Colorado law and his due process rights when it revoked his probation.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Because Melnick is proceeding pro se, we liberally construe his pleadings.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Though we can allow for
his “failure to cite proper legal authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with pleading requirements,” we
cannot assume the role of advocate on his behalf. Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991).
Appellate Case: 21-1289 Document: 010110612998 Date Filed: 12/01/2021 Page: 2
The district court dismissed his application without prejudice because Melnick failed to
exhaust available state-court remedies. He now seeks a certificate of appealability
(“COA”) under 28 U.S.C. § 2253(c)(1) to contest the district court’s decision. We deny
the COA and dismiss this matter.
DISCUSSION
A. Standard of Review
To appeal a district court’s denial of federal habeas relief under § 2241, a state
prisoner must first obtain a COA. Montez v. McKinna, 208 F.3d 862, 867 (10th Cir.
2000). To do so, the prisoner must make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). But if a district court dismisses on
procedural grounds without reaching the merits of the claim, the prisoner can still obtain
a COA by demonstrating that it’s reasonably debatable whether: (1) his petition states
that his constitutional rights were denied and (2) the district court erred in dismissing his
case on procedural grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
B. Melnick Has Failed to Exhaust His State Remedies
To obtain relief under § 2241, a state prisoner must first exhaust all available state-
court remedies. Montez, 208 F.3d at 866. A prisoner satisfies the exhaustion requirement
by going through “‘one complete round of the State’s established appellate review
process,’ giving the state courts a ‘full and fair opportunity’ to correct alleged
constitutional errors.” Chitwood v. Davis, 434 F. App’x 741, 743 (10th Cir. 2011)
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)).
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In Colorado, a prisoner may challenge the revocation of his probation through
Colorado Rule of Criminal Procedure 35(c). See White v. Denver Dist. Ct., Div. 12, 766
P.2d 632, 634 (Colo. 1988). Indeed, Melnick did just that—he moved for post-conviction
relief under Rule 35(c) in December 2020. But the state court has yet to rule on his
motion. Melnick concedes this fact. He has thus not exhausted his state-court remedies.
Still, Melnick insists otherwise. He points out that he filed a habeas petition in
state district court. That court dismissed his petition for improper venue. But rather than
appeal this dismissal, Melnick sought to invoke the Colorado Supreme Court’s original
jurisdiction under Colorado Rule of Appellate Procedure 21(a)(1). The Colorado
Supreme Court denied Melnick’s request. And that denial, according to Melnick,
exhausted his state remedies for his federal habeas petition.
We disagree. A petition asking the Colorado Supreme Court to exercise its
original jurisdiction “is not a substitute for appeal.” Bell v. Simpson, 918 P.2d 1123, 1125
n.3 (Colo. 1996) (en banc). And Melnick has “made no attempt thereafter to invoke the
Colorado Supreme Court’s appellate jurisdiction.” Scott v. Warden of the Buena Vista
Corr. Facility, 457 F. App’x 712, 714 (10th Cir. 2011). That fact combined with his still-
pending Rule 35(c) motion means that Melnick has not exhausted all available state
remedies. And because this issue is not debatable, the district court properly dismissed
his § 2241 application without prejudice. See Chitwood, 434 F. App’x at 743.
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CONCLUSION
For the reasons stated above, we deny Melnick’s COA application and dismiss this
matter.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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