Melnick v. Polis

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 1, 2021
• Docket: 21-1289
• Status: Unpublished

Opinion

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. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before MATHESON, BRISCOE, and PHILLIPS, Circuit Judges. _________________________________

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* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. 1 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