IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02552-BNB

ALAN LEWIS,

Applicant,

v.

RICK THALER, Director, Texas Department of Criminal Justice, and

THE ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents.

ORDER DRAWING CASE

I. Background

Applicant, Alan Lewis, is in the custody of the Texas Department of Criminal

Justice and incarcerated at a prison facility in Abilene, Texas. Mr. Lewis, acting pro se,

has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. In

an order entered on October 12, 2011, Magistrate Judge Boyd N. Boland directed

Respondents to file a Pre-Answer Response limited to addressing the affirmative

defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court

remedies under 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both

of those affirmative defenses in this action.

On November 2, 2011, Respondent Rick Thaler, Applicant’s current custodian in

Texas, filed a “Motion to Dismiss for Want of Jurisdiction and Motion for Special

Appearance Pro Hac Vice with Brief in Support.” On the same day, The Attorney

General for the State of Colorado filed a Pre-Answer Response. Mr. Lewis replied to

both Respondent Thaler’s Motion to Dismiss and the Pre-Answer Response.

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With respect to Respondent Thaler’s Motion to Dismiss, under Rule 2(b) of the

Rules Governing Section 2254 Cases in the United States District Courts, the state

officer having actual custody of the applicant and the attorney general of the state of the

judgment are required to be named as respondents. Nonetheless, Respondent Thaler

is not required to respond unless otherwise ordered to do so by this Court. Respondent

Thaler’s Motion to Dismiss, therefore, will be denied, but he is not required to file a PreAnswer Response.

Mr. Lewis was convicted by a jury of attempted first degree sexual assault on an

at-risk adult by use of force, third degree sexual assault on an at-risk adult, and third

degree assault on an at-risk adult in Morgan County District Court Case No. 00CR23. 

Pre-Answer Resp., Doc. No. 8-3 at 3. On January 13, 2005, Mr. Lewis was sentenced

to twenty years to life on the attempted first degree sexual assault conviction, forty

years to life on the third degree sexual assault conviction, and two years on the third

degree assault conviction. Id., Doc. No. 8-1 at 7. Mr. Lewis appealed the convictions

and sentences. The Colorado Court of Appeals (CCA) affirmed the convictions but

vacated the forty year to life sentence and remanded the case to the trial court for

resentencing. On July 23, 2008, the trial court resentenced Mr. Lewis to twenty-four

years to life in prison on the third degree sexual assault. Id. at 2. Mr. Lewis then filed a

Colo. R. Crim. P. 35(c) postconviction motion on October 2, 2008. Id. The trial court

denied the Rule 35(c) motion, and the CCA affirmed the denial on February 17, 2011.

Id. at Doc. Nos. 8-1 and 8-5. The Colorado Supreme Court denied Mr. Lewis’s petition

for certiorari review on June 6, 2011. Id. at Doc. No. 8-6. 

Mr. Lewis asserts two claims in the Application. First, he claims that his

guaranteed immunities under the Interstate Agreement on Detainers Act (IADA), Colo.

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Rev. Stat. § 24-60-501, Art. IV, were violated when his Colorado state trial was not

commenced within 120 days. Second, he claims that trial counsel was ineffective when

he failed to investigate and pursue the IADA violation. Respondents concede in the

Pre-Answer Response that Mr. Lewis’s Application is timely and Claim Two is

exhausted, but they argue that Claim One is procedurally defaulted in state court.

II. Analysis

The Court must construe liberally the Application and all other pleadings because

Mr. Lewis is not represented by an attorney. 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 an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. 

For the reasons stated below, the Court will order the Application drawn to a district

judge and magistrate judge.

A. Exhaustion/Procedural Default

Pursuant to 28 U.S.C. § 2254(b)(1), an application for a writ of habeas corpus

may not be granted unless it appears that the applicant has exhausted state remedies

or that no adequate state remedies are available or effective to protect the applicant’s

rights. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State

Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). The exhaustion requirement is

satisfied once the federal claim has been presented fairly to the state courts. See

Castille v. Peoples, 489 U.S. 346, 351 (1989). Fair presentation requires that the

federal issue be presented properly “to the highest state court, either by direct review of

the conviction or in a postconviction attack.” Dever, 36 F.3d at 1534.

Furthermore, the “substance of a federal habeas corpus claim” must have been

presented to the state courts in order to satisfy the fair presentation requirement. Picard

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v. Connor, 404 U.S. 270, 278 (1971); see also Nichols v. Sullivan, 867 F.2d 1250, 1252

(10th Cir. 1989). Although fair presentation does not require a habeas corpus petitioner

to cite “book and verse on the federal constitution,” Picard, 404 U.S. at 278 (internal

quotation marks omitted), “[i]t is not enough that all the facts necessary to support the

federal claim were before the state courts.” Anderson v. Harless, 459 U.S. 4, 6 (1982)

(per curiam). A claim must be presented as a federal constitutional

claim in the state court proceedings in order to be exhausted. See Duncan v. Henry,

513 U.S. 364, 365-66 (1995) (per curiam).

“The exhaustion requirement is not one to be overlooked lightly.” Hernandez v.

Starbuck, 69 F.3d 1089, 1092 (10th Cir. 1995). A state prisoner bringing a federal

habeas corpus action bears the burden of showing that he has exhausted all available

state remedies. See Miranda v. Cooper, 967 F.2d 392, 398 (10th Cir. 1992).

Respondents argue that Mr. Lewis did not raise Claim One as a federal

constitutional claim in state court. Respondents conclude that as a result Mr. Lewis has

not exhausted Claim One, and any new attempt to present Claim One based on a

federal constitutional claim in state court would be barred as successive and an abuse

of process. 

In his Reply to the Pre-Answer Response, Mr. Lewis asserts that the State of

Colorado’s failure to acknowledge the violations of his rights under the IADA is contrary

to the United States Supreme Court precedent in Alabama v. Bozeman, 533 U.S. 146

(2001). Mr. Lewis further argues that the IADA is an “embodiment of federal rights” and

based on this embodiment Claim One is a “federal level filing under 28 U.S.C.

§ 2254(d).” See Reply (Doc. No. 10) at 5.

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Federal habeas relief is available to Applicant only if he demonstrates that he is

“in custody in violation of the Constitution or laws or treaties of the United States." 28

U.S.C. § 2241(c)(3); see Foster v. Booher, 296 F.3d 947, 949 (10th Cir. 2002). The

United States Supreme Court has stated that "[f]ederal courts have no supervisory

authority over state judicial proceedings and may intervene only to correct wrongs of

constitutional dimension.” Smith v. Phillips, 455 U.S. 209, 221 (1982). The IADA is a

compact among forty-eight states, the District of Columbia, Puerto Rico, the Virgin

Islands, and the United States. See Carchman v. Nash, 473 U.S. 716, 719 (1985).

Adopted as law by the State of Colorado, see Colo. Rev. Stat. § 24-60-501, the IADA is

a “congressionally sanctioned interstate compact within the Compact Clause, U.S.

Const., Art. I, § 10, cl. 3, and thus is a federal law subject to federal construction.” 

Carchman, 473 U.S. at 719.

Pursuant to Article III(a) of the Interstate Agreement on Detainers,

Whenever a person has entered upon a term of imprisonment in a penal

or correctional institution of a party state, and whenever during the

continuance of the term of imprisonment there is pending in any other

party state any untried indictment, information, or complaint on the basis

of which a detainer has been lodged against the prisoner, he shall be

brought to trial within one hundred eighty days after he shall have caused

to be delivered to the prosecuting officer and the appropriate court of the

prosecuting officer's jurisdiction written notice of the place of his

imprisonment and his request for a final disposition to be made of the

indictment, information or complaint; provided that for good cause shown

in open court, the prisoner or his counsel being present, the court having

jurisdiction of the matter may grant any necessary or reasonable

continuance. The request of the prisoner shall be accompanied by a

certificate of the appropriate official having custody of the prisoner, stating

the term of commitment under which the prisoner is being held, the time

already served, the time remaining to be served on the sentence, the

amount of good time earned, the time of parole eligibility of the prisoner,

and any decisions of the state parole agency relating to the prisoner.

Colo. Rev. Stat. § 24-60-501, Art. III(a).

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The Tenth Circuit Court of Appeals has held that the “rights created by the IADA

are statutory, not fundamental, constitutional, or jurisdictional in nature.” Greathouse v.

United States, 655 F.2d 1032, 1034 (10th Cir. 1981), cert. denied, 455 U.S. 926 (1982).

Therefore, an alleged IADA violation might be proper grounds for habeas relief only if

"special circumstances" exist. Knox v. Wyoming Dep't of Corrections, 34 F.3d 964, 967

(10th Cir. 1994) (quoting Greathouse, 655 F.2d at 1034), cert. denied, 513 U.S. 1091

(1995). Because Claims One and Two are so intertwined and a determination of

special circumstances remains at issue, the Court will not find Claim One procedurally

barred at this time. 

III. Conclusion

Accordingly, it is

ORDERED that Respondent Thaler’s Motion to Dismiss and for Special

Appearance (Doc. No. 9), filed November 2, 2011, is denied. It is

FURTHER ORDERED that this case shall be drawn to a district judge and to a

magistrate judge. See D.C.COLO.LCivR 8.2D. 

DATED December 28, 2011, at Denver, Colorado.

BY THE COURT:

 s/ Boyd N. Boland 

United States Magistrate Judge

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