MARVIN O. HOLLOMAN, Petitioner-Appellant,
DAVID WALCHER, Araphahoe County Sheriff; CYNTHIA COFFMAN, Attorney General of the State of Colorado, Respondents-Appellees.
No. 1:17-CV-00704-LTB) (D. Colo.)
HARTZ, HOLMES, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
L. Hartz Circuit Judge.
Marvin Holloman, a Colorado prisoner, seeks a certificate of
appealability (COA) to appeal the denial of his application
for relief under 28 U.S.C. § 2241 by the United States
District Court for the District of Colorado. See Montez
v. McKinna, 208 F.3d 862, 868-69 (10th Cir. 2000)
(requiring a COA to appeal dismissal of application brought
by state prisoner under § 2241). His brief in this court
raises a number of arguments regarding the four claims raised
in his § 2241 application. But we need not address most
of them. His first claim is moot, and he has failed to
exhaust his state remedies for the remaining claims. We deny
a COA and dismiss the appeal.
construe Applicant's request for a COA liberally because
he proceeds pro se. See Haines v. Kerner, 404 U.S.
519, 520 (1972) (per curiam). A COA will issue "only if
the applicant has made a substantial showing of the denial of
a constitutional right." 28 U.S.C. § 2253(c)(2).
This standard requires "a demonstration that . . .
includes showing that reasonable jurists could debate whether
(or, for that matter, agree that) the petition should have
been resolved in a different manner or that the issues
presented were adequate to deserve encouragement to proceed
further." Slack v. McDaniel, 529 U.S. 473, 484
(2000) (internal quotation marks omitted). In other words,
the applicant must show that the district court's
resolution of the constitutional claim was either
"debatable or wrong." Id. If the
application was denied on procedural grounds, the applicant
faces a double hurdle. Not only must the applicant make a
substantial showing of the denial of a constitutional right,
but he must also show "that jurists of reason would find
it debatable whether the district court was correct in its
procedural ruling." Id. "Where a plain
procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be
allowed to proceed further." Id.
2241 grants the federal courts power to grant writs of habeas
corpus. See 28 U.S.C. § 2241(a). "Habeas
corpus review is available under § 2241 if an individual
is in custody in violation of the Constitution or laws or
treaties of the United States." Palma-Salazar v.
Davis, 677 F.3d 1031, 1035 (10th Cir. 2012) (internal
quotation marks omitted). The purpose of habeas corpus is to
permit challenges to the fact or duration of confinement.
first challenges the denial of a preliminary hearing in
Denver District Court Case No. 16CR3784. This claim is now
moot. In June 2016, while on parole for a prior conviction,
he was arrested and charged with two counts of forgery and
one count of theft. The Denver District Court declined to
schedule a preliminary hearing because Applicant had already
posted bond in that case and his detention was not on the
present charges but based on a detainer lodged by his parole
officer. He unsuccessfully moved to dismiss his case for
failure to provide a preliminary hearing and then petitioned
for relief in the Colorado Supreme Court, which denied the
petition. He was convicted on all counts in March 2017 and
sentenced that June. In light of that conviction and
sentence, this § 2241 proceeding can no longer afford
Applicant any relief on this claim even if he had been
improperly denied a preliminary hearing. "[A] conviction
will not be vacated based on the ground that the defendant
was detained pending trial without a determination of
probable cause." United States v. Miller, 532
F.2d 1335, 1339 (10th Cir. 1976); see Gerstein v.
Pugh, 420 U.S. 103, 119 (1975). Thus mootness precludes
our jurisdiction. See City Ctr. W., LP v. Am. Modern Home
Ins. Co., 749 F.3d 912, 913 (10th Cir. 2014)
("Federal courts may hear a dispute only when its
resolution will have practical consequences to the conduct of
the parties." (internal quotation marks omitted)). The
district court's dismissal of this claim without
prejudice was proper.
remaining claims were properly dismissed without prejudice
because of his failure to exhaust state remedies. "A
habeas petitioner is generally required to exhaust state
remedies [when] his action is brought under § 2241 . . .
." Montez, 208 F.3d at 866 (10th Cir. 2000)
(citations omitted). "For a federal court to consider a
federal constitutional claim in an application for habeas,
the claim must be fairly presented to the state courts in
order to give state courts the opportunity to pass upon and
correct alleged violations of its prisoners' federal
rights." Prendergast v. Clements, 699 F.3d
1182, 1184 (10th Cir. 2012) (internal quotation marks
omitted). In particular, exhaustion requires pursuit of
appellate remedies. See Thacker v. Workman, 678 F.3d
820, 839 (10th Cir. 2012) ("[T]he [exhaustion] doctrine
requires state prisoners to give the state courts one full
opportunity to resolve any constitutional issues by invoking
one complete round of the State's established appellate
review process." (original brackets and internal
quotation marks omitted)); Gonzales v. McKune, 279
F.3d 922, 924 (10th Cir. 2002) ("Claims not included in
a petition for discretionary review to the state's
highest court are not exhausted . . . ."). "A state
prisoner bears the burden of showing he has exhausted
available state remedies." Hernandez v.
Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995).
second claim is that a criminal charge was filed against him
in retaliation for his exercise of his First Amendment
rights. The charge was dismissed without prejudice after he
filed his § 2241 application. Applicant conceded in
district court that he had not exhausted his state remedies
on this claim. His § 2241 application, in response to
the form's question regarding exhaustion, simply asserts
that a federal court may address his claim in the first
instance. Although his opening brief asserts that he filed a
motion to dismiss in his criminal case some two years before
it was dismissed, we decline to consider whether this would
be sufficient to exhaust his remedies, given his failure to
raise the issue below. See Rhine v. Boone, 182 F.3d
1153, 1154 (10th Cir. 1999) ("[W]e will generally not
consider issues raised on appeal that were not first
presented to the district court.").
third claim challenges the detainer placed on him for
allegedly violating the conditions of his parole from a prior
Colorado conviction, resulting in his detention in jail. He
contends that he was entitled to a hearing on the propriety
of the parole hold. The district court properly dismissed
this claim for failure to exhaust state remedies. Although
Applicant brought a civil case challenging the parole hold,
he did not appeal the state trial court's adverse ruling
before applying for relief under § 2241. No reasonable
jurist would conclude that he had exhausted his state-law
remedies for this claim.
Applicant complains that the Arapahoe County Clerk failed to
file habeas petitions. No reasonable jurist could conclude
that he has exhausted his state-law remedies for this claim
either. He has not alleged that he filed any action in state
court challenging the clerk's alleged behavior. While
Applicant claims for the first time on appeal that the
clerk's failure to file petitions prevented him from
seeking state-court relief on this issue, we decline to
consider this newly raised point. See Rhine, 182
F.3d at 1154.
DENY Defendant's application for a COA,
his motion to proceed in forma pauperis, and his
motion to ...