Still v. Herndon et al

Filing 74

ORDER AFFIRMED and ADOPTED in part and REJECTED in part 55 Report and Recommendations. Applicants first claim is DISMISSED with prejudice; Applicants second claim is DISMISSED with prejudice; and Applicants third claim is DISMISSED with prejudice. It is THEREFORE ORDERED that Applicants Application, ECF No. 2 , is DENIED in its entirety. Applicants Objection to Recommendation of the United States Magistrate Judge, ECF No. 66 , is OVERRULED; and Applicants original documents filed as Applicants Motion to Supplement the Record, ECF No. 67 , and all documents referred to in the Magistrate Judges October 29, 2009 Minute Order, ECF No. 31 , be returned to Applicant. by Judge William J. Martinez on 9/26/2011.(erv, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-01326-WJM-KLM
MINOR MICHAEL STILL,
Applicant,
v.
MARY HERNDON, Administrative Service, U.S. Marshal, Colorado,
KEN DEAL, Deputy United States Marshal, Colorado, and
HARLEY LAPPIN, Director, Federal Bureau of Prisons,
Respondents.

ORDER ON APRIL 18, 2011 RECOMMENDATION
OF U.S. MAGISTRATE JUDGE

THIS MATTER is before the Court on the April 18, 2011 Recommendation of
United States Magistrate Judge (“Recommendation”). (ECF No. 55.) In this
Recommendation, Magistrate Judge Kristen L. Mix recommends the Court deny
Applicant’s Application for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241
(“Application”), ECF No. 2. The Magistrate Judge further recommends the Court (1)
dismiss Applicant’s first and second claims with prejudice; (2) dismiss Applicant’s third
claim without prejudice; and (3) grant Applicant leave to reassert his third claim should
the Bureau of Prisons fail to consider Applicant’s request to receive credit toward the
completion of his federal sentence for time served on a state sentence. (ECF No. 55 at
26-27.) The Recommendation is incorporated herein by reference. See 28 U.S.C. §
636(b)(1), Fed. R. Civ. P. 72(b), D.C.COLO.LCivR. 72.1.

On June 6, 2011, Applicant filed Applicant’s Objection to Recommendation of the
United States Magistrate Judge (“Objection”). (ECF No. 66.) In light of Applicant’s
Objection, the Court has conducted the requisite de novo review of the issues, the
Recommendation, and the Objection. For the reasons stated below, the Court
AFFIRMS and ADOPTS in part the Recommendation and REJECTS in part the
Recommendation.
BACKGROUND
The Court here includes the facts as set forth in the Recommendation. On May
22, 2003, Applicant began a program of Intensive Supervision Parole (“ISP”) with the
Colorado Department of Corrections (“CDOC”) while serving a nine-year sentence that
was imposed by the Denver District Court in Case No. 97CR2258 on July 14, 1998 for
“two counts of being a habitual criminal and one count of theft.” United States v. Still,
No. 05-cr-00014-REB, Docket No. 43 at 1, 2005 WL 3478350, at *1 (D. Colo. Dec. 20,
2005) (unreported decision) (Order Concerning Defendant’s Petition for Writ of Habeas
Corpus). (See also Supplement to Applicant’s 28 U.S.C. § 2241 Petition
(“Supplement”), ECF No. 33 at 6 (October 30, 2009 letter from the Federal Bureau of
Prisons stating that Applicant was “sentenced in Case No. 97CR2258 to a . . . term of
imprisonment”).) On March 31, 2004, Applicant “escaped from ISP.” (Reply to
Preliminary Response of Respondents (“Reply”), ECF No. 17 at 6; see Supplement,
ECF No. 33 at 6 (stating that Applicant “absconded” from March 31, 2004 until January
1, 2005).) A state warrant was issued for his arrest in Case No. 05CR152. (Reply, ECF
No. 17 at 6.)

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On December 30, 2004, a United States Magistrate Judge issued a warrant for
Applicant’s arrest in Case No. 05-cr-00014-REB on charges of pretending to be an
employee of the Internal Revenue Service in violation of 18 U.S.C. § 912. Still, No. 05cr-00014-REB, Docket No. 2 (D. Colo. Dec. 30, 2004) (Arrest Warrant). On January 1,
2005, Applicant was arrested by the Denver Police Department.1 (See Answer, ECF
No. 8 at 2; Reply, ECF No. 17 at 6.) On January 3, 2005, the Denver Police
Department remanded Applicant to the temporary custody of the United States Marshal
pursuant to a writ of habeas corpus ad prosequendum issued on the basis of the
outstanding federal arrest warrant in Case No. 05-cr-00014-REB. (Reply, ECF No. 17
at 6; Supplement, ECF No. 33 at 6.) Applicant was indicted by the federal grand jury on
January 4, 2005, and he was arraigned on January 10, 2005. Still, No. 05-cr-00014REB, ECF No. 3 (D. Colo. Jan. 4, 2005) (Indictment); id., ECF No. 8 (D. Colo. Jan. 10,
2005) (Courtroom Minutes for Arraignment). During the pendency of his federal case,
Applicant remained in temporary federal custody. (See Reply, ECF No. 17 at 6 (stating
that Applicant remained in federal custody during the period from January 3, 2005
through June 24, 2005).) See also Still, No. 05-cr-00014-REB, ECF No. 10 (D. Colo.
Jan. 11, 2005) (Order of Detention).

1

In his Objection, Applicant states that he was arrested on January 1, 2005 by the Denver
Police Department on burglary charges and not because of an arrest warrant for escaping from
ISP. (ECF No. 66 at 2.) However, in Applicant’s Supplement, he states that on “January 01,
2005, the applicant was arrested by agents of the Denver Police Department and charged with
the offense of escape from ISP (05CR152) in Denver County Colorado District Court.” (ECF
No. 17 at 6.) Whether Applicant was arrested pursuant to an arrest warrant issued following his
escape from ISP or because of a burglary investigation, the Court does not find that the reason
for Applicant’s arrest on this date affects the outcome of the Recommendation or the Court’s
analysis of the Application.
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While still in temporary federal custody, Applicant was convicted in Denver
District Court of attempted escape in Case No. 05CR152. (Reply, ECF No. 17 at 6.)
On March 28, 2005, he was sentenced to two years imprisonment with CDOC. (Id.;
District Court City and County of Denver Sentencing Memorandum, ECF No. 18-1.)
After this sentencing, Applicant remained in temporary federal custody pending
resolution of his federal case.
On June 24, 2005, Applicant was sentenced in Case No. 05-cr-00014-REB to 36
months imprisonment with the Federal Bureau of Prisons (“BOP”) after entering a guilty
plea to one count of pretending to be an employee of the Internal Revenue Service in
violation of 18 U.S.C. § 912. (Application, ECF No. 2 at 3; Judgment in Case No. 05CR-00014-REB, ECF No. 18-2; Still, No. 05-cr-00014-REB, ECF No. 24 (D. Colo. Jun.
24, 2005) (Minutes of Sentencing Hearing).) This federal prison term was to be served
consecutive to Applicant’s undischarged state prison terms (i.e., any time remaining to
be served on the nine-year sentence imposed in Case No. 97CR2258 plus the two-year
sentence imposed in Case No. 05CR152). See 18 U.S.C. § 3584(a) (“Multiple terms of
imprisonment imposed at different times run consecutively unless the court orders that
the terms are to run concurrently.”); Still, No. 05-cr-00014-REB, ECF No. 43 at 1, 2005
WL 3478350, at *1 (D. Colo. Dec. 20, 2005) (“I have not ordered that Still’s 36-month
federal sentence be served concurrently with any of his pending state sentences.”).
“After the June 24, 2005, sentencing hearing, [Applicant] was transported to a
[CDOC] facility.” Still, No. 05-cr-00014-REB, ECF No. 43 at 3, 2005 WL 3478350, at *1
(D. Colo. Dec. 20, 2005). (See also Prisoner Remand or Order to Deliver and Receipt
for United States Prisoners, ECF No. 18-3 (showing that Applicant was remanded from
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the custody of the United States Marshal to the custody of CDOC on June 27, 2005).)
Applicant was to continue serving what remained of his original nine-year state
sentence imposed in Case No. 97CR2258 plus the additional two-year state sentence
imposed in Case No. 05CR152. On July 6, 2005, the United States Marshal filed a
Detainer, ECF No. 18-4, with CDOC stating as follows: “Prior to [Applicant’s] release
from your custody, please notify this office at once so that we may assume custody of
[Applicant] for service of his Federal sentence of imprisonment.”
On May 6, 2007, Applicant was released on parole by CDOC. (Reply, ECF No.
17 at 6.) However, at the time of his release, CDOC located an outstanding warrant for
his arrest on a charge of theft issued by the Jefferson County District Court in Case No.
05CR108. (Id.) Pursuant to the arrest warrant, Applicant was remanded from the
custody of CDOC to the custody of the Jefferson County Jail. (Id.) Thus, rather than
entering the custody of the United States Marshal pursuant to the Detainer, ECF No.
18-4, to begin service of his 36-month federal sentence, Applicant remained in state
custody.
On June 25, 2007, Applicant pled guilty in Jefferson County District Court to one
count of theft in violation of Colo. Rev. Stat. § 18-4-402. (Id. at 8 (document titled
“Combined Court, Jefferson County, State of Colorado Judgment of Conviction in Case
No. 05CR108”).) Applicant was sentenced to five years imprisonment with CDOC. (Id.)
The sentencing judge, Judge Randall C. Arp, indicated that the five-year sentence was
to be served concurrently with Applicant’s undischarged 36-month federal sentence.
(Id.) After the sentencing, Applicant was conveyed from the Jefferson County Jail to the
custody of CDOC. (See id.)
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Applicant filed a petition for a writ of habeas corpus in state court “challeng[ing]
the structure of the [imposed sentence] in case number 05CR108 and his place of
confinement.” (Application, ECF No. 2 at 4.) Applicant sought to be transferred from
the custody of CDOC to the custody of the United States Marshal (and ultimately BOP)
so that he could begin serving his 36-month federal sentence. (See id.) Applicant
recognized that “the State of Colorado [would] give [him] credit [towards the completion
of his five-year sentence imposed in Case No. 05CR108] for any time he serve[d] in
federal custody” while “the federal government [would] not give [him] credit [towards the
completion of his 36-month federal sentence imposed in Case No. 05-cr-00014-REB]
for any time he serve[d] in state custody.” (Reply, ECF No. 17 at 10 (quoting the
response of the Attorney General of Colorado to Applicant’s appeal of the denial of his
application for a writ of habeas corpus that was filed in state district court).) Ultimately,
the Colorado courts determined that (1) Applicant was lawfully in CDOC’s custody, and
(2) they were powerless to order the United States Marshal or BOP to take custody of
Applicant.
On July 24, 2008, the United States Marshal filed a new Detainer, ECF No. 18-7,
with CDOC stating as follows: “Prior to [Applicant’s] release from your custody, please
notify this office at once so that we may assume custody of [Applicant] for service of his
Federal sentence of imprisonment.”
On February 3, 2011, Applicant was released on parole by CDOC. (Motion to
Supplement the Record, ECF No. 67 at 18 (Parole Agreement).) Applicant is now in the
custody of BOP serving the 36-month sentence imposed in Case No. 05-cr-00014-REB.
(Joint Status Report, ECF No. 45 at 3.)
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On June 8, 2009, Applicant filed the instant Application, ECF No. 2. The
Magistrate Judge issued a Recommendation, ECF No. 55, on April 18, 2011, and
Applicant timely submitted Applicant’s Objection to Recommendation of the United
States Magistrate Judge, ECF No. 66, on June 6, 2011.
STANDARD OF REVIEW
When a magistrate judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine
de novo any part of the magistrate judge's [recommendation] that has been properly
objected to.” Fed. R. Civ. P. 72(b)(3). An objection is properly made if it is both timely
and specific. U.S. v. One Parcel of Real Property Known As 2121 East 30th Street, 73
F.3d 1057, 1059 (10th Cir.1996). An objection is timely if made within 10 days after the
Magistrate Judge issues her recommendation. Id. An objection is sufficiently specific if
it “enables the district judge to focus attention on those issues–factual and legal–that
are at the heart of the parties’ dispute.” See id. (quoting Thomas v. Arn, 474 U.S. 140,
147 (1985)). If objections are not made or if made improperly, the Court has discretion
to review the recommendation under whatever standard it deems appropriate.
Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991). In conducting its review,
“[t]he district judge may accept, reject, or modify the [recommendation]; receive further
evidence; or return the matter to the magistrate judge with instructions.” Fed. R. Civ. P.
72(b)(3).
In considering the Magistrate Judge’s Recommendation in the instant case, the
Court is mindful of Applicant’s pro se status, and accordingly, reads his pleadings and
filings liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal
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construction is intended merely to overlook technical formatting errors and other defects
in Applicant’s use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). Pro se status does not relieve Applicant of the duty to
comply with various rules and procedures governing litigants and counsel or the
requirements of the substantive law and, in these regards, the Court will treat Applicant
according to the same standard as counsel licensed to practice law before the bar of
this Court. See McNeil v. United States, 508 U.S. 106, 113 (1993); Ogden v. San Juan
County, 32 F.3d 452, 455 (10th Cir. 1994).
The Magistrate Judge properly stated that Applicant’s Application is reviewed
pursuant to 28 U.S.C. § 2241(c), which provides as follows:
The writ of habeas corpus shall not extend to a prisoner unless—
(1) He is in custody under or by color of the authority of the United States or is
committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of the
United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the
United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an
act done or omitted under any alleged right, title, authority, privilege, protection,
or exemption claimed under the commission, order or sanction of any foreign
state, or under color thereof, the validity and effect of which depend upon the law
of nations; or
(5) It is necessary to bring him into court to testify or for trial.

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DISCUSSION
I.

Applicant’s First Claim2
In the first claim for relief, Applicant contends that Respondents violated

unspecified “constitutional rights” by remanding him to the custody of the CDOC on
June 27, 2005 instead of retaining custody so that he could immediately begin serving
his 36-month federal sentence. (Application, ECF No. 2 at 6.) The Magistrate Judge
found that because Applicant has since been transferred to the custody of the BOP, this
request for relief is now moot. (ECF No. 55 at 14.) The Magistrate Judge recommends
that this claim be dismissed with prejudice. (Id. at 26.)
The Applicant did not object to this portion of the Magistrate Judge’s
Recommendation. The Court therefore adopts the Recommendation as the findings
and conclusions of the Court with relation to Applicant’s first claim.
II.

Applicant’s Second Claim3
In the second claim for relief, Applicant contends that BOP violated the rights

guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S.
Constitution by failing to designate CDOC facilities as the place of service of his 36month federal sentence at the time he entered CDOC custody on June 27, 2005.
(Application, ECF No. 2 at 9.) The Magistrate Judge found that because Applicant’s 36-

2

In the Application, this claim is “Claim Two,” but the Magistrate Judge found, and this
Court agrees, that it is most logical to address it first.
3

In the Application, this claim is “Claim Three,” but the Magistrate Judge found, and this
Court agrees, that it is most logical to address it second.
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month federal sentence was to run consecutive to the completion of his state sentences
from Case Nos. 97CR2258 and 05CR152, BOP was not required to designate CDOC
facilities as the place of service of the federal sentence at the time Applicant was
remanded to CDOC custody on June 27, 2005. (ECF No. 55 at 19.) The Magistrate
Judge recommends that this claim be dismissed with prejudice. (Id. at 26.)
The Applicant did not provide a specific objection to this portion of the Magistrate
Judge’s Recommendation. The Court, therefore, need not conduct a de novo review of
this claim. Upon consideration of the Recommendation as to claim two, the Court here
adopts the Recommendation as the findings and conclusions of the Court with relation
to Applicant’s second claim.
III.

Applicant’s Third Claim4
In his third claim for relief, Applicant contends that he was denied due process

when he contacted the BOP after his sentencing in Case No. 05CR108 in an effort to
have CDOC facilities designated as the place of service of his 36-month federal
sentence beginning on June 25, 2007, which is the date of sentencing in Case No.
05CR108. (Application, ECF No. 2 at 6.) Applicant here seeks an order directing BOP
to designate, nunc pro tunc, CDOC facilities as the place of service of his 36-month
federal sentence beginning on June 25, 2007. (See id.)
The Magistrate Judge found that Applicant is here asserting a Barden5 claim,

4

In the Application, this claim is “Claim One,” but the Magistrate Judge found, and this
Court agrees, that it is most logical to address it third.
5

Pursuant to Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990).
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which only provides relief in the form of an order directing the BOP to examine and
consider Applicant’s request for nunc pro tunc designation. (ECF No. 55 at 26.) At the
time the Recommendation was issued, the BOP was then considering whether a nunc
pro tunc designation was appropriate in this case. (Id.) The Magistrate Judge
accordingly recommended that Applicant’s third claim be dismissed without prejudice
and that Applicant be granted leave to reassert his Barden claim in the event that the
BOP failed to complete its consideration of whether he should receive credit toward the
completion of his federal sentence for time served on his state sentence from Case No.
05CR108. (Id. at 27.)
Since the Recommendation was issued, Respondents have submitted a Status
Report, ECF No. 70, stating that the BOP has conducted its Barden analysis and is
denying Applicant’s request. Given these changed circumstances, the factual predicate
for the Magistrate Judge’s ruling on this claim no longer obtains. The Court must
therefore conduct its own de novo review of Applicant’s third claim for relief.
On June 25, 2007, Applicant plead guilty to one count of theft in Case No.
05CR108. (Reply, ECF No. 17 at 8.) Judge Arp sentenced Applicant to five years
imprisonment, to be served concurrently with Applicant’s undischarged 36-month
federal sentence. (Id.) Since receiving this sentence, Applicant has remained in the
custody of the CDOC and has not been given credit toward the completion of his 36month federal sentence. (See Reply, ECF No. 17 at 10 (“the federal government will
not give Still credit for any time he serves in state custody”).) The Recommendation
correctly notes that, generally, a federal prisoner is not entitled to credit on his federal
sentence for time spent in state custody. See Bloomgren v. Belaski, 948 F.2d 688, 690
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(10th Cir. 1991). Thus, BOP is not required to give Applicant credit for the time that he
was serving his five-year sentence in the custody of the CDOC from Case No.
05CR108. Further, pursuant to 18 U.S.C. § 3621(b), “[t]he Bureau of Prisons shall
designate the place of the prisoner’s imprisonment.” This Court does not have
jurisdiction to issue an order nunc pro tunc directing the BOP to give Applicant credit for
time spent in state custody. See U.S. v. Miller, 594 F.3d 1240, 1242 (10th Cir. 2010).
Applicant argues in his Objection that serving his 36-month federal sentence
consecutive to his five-year state sentence violates the terms of his plea agreement.
(Objection, ECF No. 66 at 16.) Applicant further argues that a federal judge may not
direct a federal sentence be served consecutively to a state sentence not yet imposed.
(Id. (citing United States v. Clayton, 927 F.2d 491, 493 (9th Cir. 1991).) The Tenth
Circuit, however, has held that there is nothing barring “a district court from ordering that
a federal sentence be served consecutively to a state sentence that has not yet been
imposed.” United States v. Williams, 46 F.3d 57, 58 (10th Cir. 1995). Additionally, as
noted in Barden, “neither the federal courts nor the [BOP] are bound in any way by the
state court’s direction that the state and federal sentences run concurrently.” 921 F.2d
at 478 n.4 (citing U.S. Const. art. VI, cl. 2). Thus, while BOP’s decisions requiring
Applicant to serve his five-year state sentence consecutively instead of concurrently
with his 36-month federal sentence is not in the spirit of the state court’s order, it does
not violate Applicant’s state plea agreement.
In Barden v. Keohane, the Court of Appeals for the Third Circuit held that when a
federal prisoner makes a request to receive credit toward the completion of his federal
sentence for time served on a state sentence, the BOP has “an obligation . . . to look at
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[Applicant’s] case and exercise the discretion the applicable statute grants the [BOP] to
decide whether the state prison in which he served his sentence should be designated
as a place of federal confinement nunc pro tunc.” Barden, 921 F.2d 476, 478 (3d Cir.
1990). Under Barden, however, it must be stressed that the BOP is given broad
discretion in making this determination. Id.
Pursuant to an Order entered by the Magistrate Judge requesting Respondents
address the issue of “whether BOP has considered granting Applicant credit toward the
completion of his federal sentence for the time served on his five-year sentence from
Case No. 05CR108,” ECF No. 50 at 3-4, the BOP began review of Applicant’s request
for nunc pro tunc designation as it relates to Case No. 05CR108. (ECF No. 54.)
Respondents have provided the Court with the following BOP policy: “If an
inmate makes a request to [BOP] for a ‘nunc pro tunc’ designation (i.e., occurring now
as though it had occurred in the past) of his state institution as a federal institution,
[BOP] will review the request under the provisions of 18 U.S.C. § 3624(b), as set forth in
Barden v. Keohane, 921 F.2d 476 (3d Cir. 1990).” (Answer, ECF No. 18 at 10.)
Respondents also set forth BOP’s procedure for reviewing such requests:
In making the determination whether a designation for concurrent service may be
appropriate, [BOP] will send a letter to the sentencing court inquiring whether the
court has any objections. If a response is not received from the sentencing court
within 60 days, the bureau will address the issue and make a final decision.
Inmates must exhaust these remedies before seeking relief in a district court.
(Id. at 11 (internal citations omitted); see BOP Program Statement No. 5160.05, ECF
No. 8-13 (providing “instructions for the designation of a state institution for concurrent
service of a federal sentence”).)
The BOP contacted the federal sentencing court on April 8, 2011, to inquire
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whether the court thought such a designation would be appropriate. (Melick Decl., ECF
No. 54-1 at 1 ¶ 4.) No response was received. (Melick Decl., ECF No. 70-1 at 4 ¶ 4.)
After considering all of the factors pursuant to 18 U.S.C. § 3621(b), the BOP
“determined a nunc pro tunc designation would not be consistent with the goals of the
criminal justice system, and is not appropriate in this case.” (Id. at 1 ¶ 4.)
As previously stated, this Court does not have jurisdiction to order the BOP to
designate, nunc pro tunc, Applicant’s time served on his five-year sentence in CDOC
custody as the place of his federal confinement. Because the Court lacks authority to
provide the relief requested in Applicant’s third claim, this claim must be dismissed with
prejudice.
IV.

Evidentiary Hearing and Appointment of Counsel
In his Objection, Applicant contends that the Magistrate Judge erred in not

holding an evidentiary hearing regarding the issues presented in his Application, and in
not appointing counsel to represent him in these matters. (Objection, ECF No. 66 at 9,
11.)
As to Applicant’s argument regarding appointment of counsel, “there is no
constitutional right to counsel in a habeas proceeding.” (Magistrate Judge Order
Denying Motion Requesting Assignment of Counsel, ECF No. 30 (quoting Coronado v.
Ward, 517 F.3d 1212, 1218 (10th Cir. 2008).) The Magistrate Judge appropriately
denied Applicant’s Motion on October 29, 2009, id., and this decision is not here open to
review as it was not addressed in the Recommendation.
As for Applicant’s argument that he should have been afforded an evidentiary
hearing, the Court notes that no hearing is necessary where “there is nothing in the
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record that indicates [the Applicant] is entitled to any relief.” Stouffer v. Workman, 348
F. App’x 401, 405 (10th Cir. 2009). In this case, the issues to be addressed were
appropriately decided on the briefing alone, and an evidentiary record was not
necessary. Therefore, the Court holds that the Magistrate Judge properly determined
that an evidentiary hearing on Applicant’s claims was not necessary.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that the Recommendation of
the Untied States Magistrate Judge, ECF No. 55, filed April 18, 2011, is AFFIRMED and
ADOPTED in part and REJECTED in part. For the reasons cited in the
Recommendation and in this Order,
IT IS HEREBY ORDERED that:
1)

Applicant’s first claim is DISMISSED with prejudice;

2)

Applicant’s second claim is DISMISSED with prejudice; and

3)

Applicant’s third claim is DISMISSED with prejudice.

It is THEREFORE ORDERED that Applicant’s Application, ECF No. 2, is
DENIED in its entirety.
It is FURTHER ORDERED that:
1)

Applicant’s Objection to Recommendation of the United States Magistrate
Judge, ECF No. 66, is OVERRULED; and

2)

Applicant’s original documents filed as Applicant’s Motion to Supplement
the Record, ECF No. 67, and all documents referred to in the Magistrate
Judge’s October 29, 2009 Minute Order, ECF No. 31, be returned to
Applicant.
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Dated this 26th day of September, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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