Stevens v. Sheriff of El Paso County

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judgment is not binding precedent, except under the doctrines of law of the case,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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