Free Order on Motion for Writ of Habeas Corpus ad testificandum - District Court of Colorado - Colorado

Case 1:04-cv-01082-EWN-MEH

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Filed 03/14/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Edward W. Nottingham Civil Action No. 04­ 01082­ cv­ EWN­ MEH

EDWIN MARK ACKERMAN, Applicant, v. CARL ZENON (Warden) and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER ACCEPTING MAGISTRATE JUDGE' RECOMMENDATION S

This matter is before the court on the assigned magistrate judge' recommendation, filed s April 27, 2005, that the application for habeas corpus be denied and that the case be dismissed. The magistrate judge reasoned (1) that Applicant' petition was barred by the one-year limitations s period found in 28 U.S.C. § 2244(d)(1) (2006) and (2) that neither Blakely v. Washington, 542 U.S. 296 (2004) nor Apprendi v. New Jersey, 530 U.S. 466 (2000) applied retroactively to support Applicant' claims. Applicant has objected to the recommendation. s The standard

of review which this court employs in considering a magistrate judge' submissions depends upon s whether the motion before the court and magistrate judge is viewed as dispositive or nondispositive. For dispositive motions (such as the one under review here), a district court assessing a magistrate judge' recommendations for disposition must make a " novo determination of s de those portions of the [recommendation] . . . to which objection is made." See 28 U.S.C.A. §

Case 1:04-cv-01082-EWN-MEH

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636(b)(1) (West 1993); Fed. R. Civ. P. 72(b). " When conducting de novo review, the district court makes its own determinations of disputed issues and does not decide whether the magistrate' proposed findings are clearly erroneous." Branch v. Martin, 886 F.2d 1043, 1046 s (8th Cir. 1989). Applicant first objects to the magistrate judge' calculation of the time periods leading to s the conclusion that his current case is time-barred. His objection is difficult to follow. Apparently referring to a prior federal habeas case, he mistakenly claims that the case was filed July 2, 2000. (It was, in fact, filed June 14, 2002, as demonstrated by this court' docket sheet.) He somehow s thinks that this federal case, which was dismissed for failure to exhaust state court remedies, tolled the limitations period so that the current, second petition is timely. He is wrong, for numerous reasons. First, as the magistrate judge said, the filing and pendency of a federal habeas petition does not toll the one-year limitations period, nor does the current petition somehow relate back to the first petition. Second, as the magistrate judge demonstrated, the first federal petition was itself untimely, although this court did not reach the issue because the case was dismissed on other grounds. Third, perusal of the docket sheet shows that the previous federal petition was pending from June 14, 2002 through October 4, 2002, when the court of appeals granted Applicant' motion to dismiss so he could exhaust state remedies. Even if the entire period (109 s days) tolled the limitations period, the current petition is still untimely. Applicant also repeats his objection to the magistrate judge' view of the retroactivity of s Apprendi and Blakely. Established Tenth Circuit authority, cited by the magistrate judge, demonstrates that Applicant is wrong. I have conducted the requisite de novo review of the issues, the record, and the recommendation. Based on this review, I have concluded that the -2-

Case 1:04-cv-01082-EWN-MEH

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recommendation is a correct application of the facts and the law.* Accordingly, it is ORDERED as follows: 1. The recommendation is ACCEPTED. 2. The petition for a writ of habeas corpus is DENIED and the case is DISMISSED with prejudice. 3. All other pending motions are DENIED as moot. DATED this 14th day of March, 2006.

BY THE COURT:

s/ Edward W. Nottingham EDWARD W. NOTTINGHAM United States District Judge

The court notes an apparent minor and immaterial discrepancy in the mathematical calculations, which the court is unable to follow. One calculation concerning the first time period (at page nine of the recommendation) excludes 242 days, while the second calculation (at page 11) excludes 243 days. -3-

*