Mayo v. Wilner

Filing 24

ORDER. The magistrate judges Recommendation on Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 19 filed 04/13/2009, is APPROVED and ADOPTED as an order of this court. The objections stated in the applicants Objections to Re commendations (sic) on Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 20 filed 04/21/2009, are OVERRULED. The Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §2241 3 filed 08/29/2008 is DENIED. Claim O ne and Claim Two of the application for writ of habeas corpus are DISMISSED WITH PREJUDICE. Claim Three of the application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE pursuant to the prior Order To Dismiss in Part and To Draw Case to a District Judge and to a Magistrate Judge 14 filed 12/03/2008. Judgment SHALL ENTER on behalf of respondent, J.M. Wilner, Warden FCI-Florence, and against plaintiff, Dennis Mayo, as to Claim One and Claim Two of the application for writ of habeas corpus. Respondent is AWARDED his costs by Judge Robert E. Blackburn on 05/28/2009.(sah, )

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Robert E. Blackburn Civil Case No. 08-cv-01863-REB-MEH DENNIS MAYO, Applicant, v. J. M. WILNER, Warden, FCI - Florence, Respondent. ORDER OVERRULING OBJECTIONS TO AND ADOPTING RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE Blackburn, J. The matters before me are (1) the magistrate judge's Recommendation on Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 [#19] filed April 13, 2009; and (2) applicant's Objections to Recommendations (sic) on Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 [#20] filed April 21, 2009. I overrule the objections, adopt the recommendation, and deny the application for a writ of habeas corpus. As required by 28 U.S.C. 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, objections, and applicable caselaw. Because plaintiff is proceeding pro se, I have construed his pleadings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, , 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Belmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). The recommendation is detailed and well-reasoned. Contrastingly, plaintiff's objections are imponderous and without merit. Therefore, I find and conclude that the arguments advanced, authorities cited, and findings of fact, conclusions of law, and recommendation proposed by the magistrate judge should be approved and adopted. THEREFORE, IT IS ORDERED as follows: 1. That the magistrate judge's Recommendation on Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 [#19] filed April 13, 2009, is APPROVED and ADOPTED as an order of this court; 2. That the objections stated in the applicant's Objections to Recommendations (sic) on Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 [#20] filed April 21, 2009, are OVERRULED; 3. That the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. 2241 [#3] filed August 29, 2008, is DENIED; 4. That Claim One and Claim Two of the application for writ of habeas corpus are DISMISSED WITH PREJUDICE; 5. That Claim Three of the application for writ of habeas corpus is DISMISSED WITHOUT PREJUDICE pursuant to the prior Order To Dismiss in Part and To Draw Case to a District Judge and to a Magistrate Judge [#14] filed December 3, 2008; 6. That judgment SHALL ENTER on behalf of respondent, J.M. Wilner, Warden, 2 FCI-Florence, and against plaintiff, Dennis Mayo, as to Claim One and Claim Two of the application for writ of habeas corpus; and 7. That respondent is AWARDED his costs, to be taxed by the Clerk of the Court pursuant to Fed.R.Civ.P. 54(d)(1) and D.C.COLO.LCivR 54.1. Dated May 28, 2009, at Denver, Colorado. BY THE COURT: 3

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