Brunsilius v. Sloan

Filing 11

USCA ORDER as to Wayne Brunsilius. Mr. Brunsilius has filed a petition for writ of mandamus. We deny the petiton for mandamus and deny in forma pauperis. USCA case no. 10-1210. (bjrsl, )

Case: 10-1210

Document: 01018433181

Date Filed: U n i t e d States Court 1 Appeals 06/02/2010 Page: of T e n t h Circuit

FILED

J u n e 2, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

I n re: WAYNE BRUNSILIUS Petitioner. N o . 10-1210 ( D . C . No. 1:10-CV-00739-BNB) ( D . Colo.)

ORDER B e f o r e LUCERO, HARTZ, and HOLMES, Circuit Judges.

W a y n e Brunsilius has filed a petition for a writ of mandamus. Upon c o n s i d e r a t i o n , we deny the petition. In district court, Mr. Brunsilius filed a pleading titled "Complaint and P e t i t i o n for Removal of Case Pursuant to Title 28 U.S.C. § 1441(a),(b),(c), (e1) to F e d e r a l Jurisdiction." After reviewing the complaint, the district court d e t e r mi n e d that Mr. Brunsilius's claims were properly asserted pursuant to 2 8 U.S.C. § 2254 because he was challenging his state court conviction. The d i s t r i c t court therefore ordered Mr. Brunsilius to correct several deficiencies with h i s complaint in order to properly file it as a § 2254 petition. Mr. Brunsilius then mo v e d to recuse the magistrate judge that had been assigned to his case and for an e x t e n s i o n of time to cure the deficiencies in his filing.

Case: 10-1210

Document: 01018433181

Date Filed: 06/02/2010

Page: 2

L e s s than two weeks after he filed the motion to recuse, Mr. Brunsilius f i l e d the instant mandamus petition in this court seeking an order compelling the d i s t r i c t court to rule on his motion to recuse the magistrate judge assigned to his c a s e and to set a hearing on his complaint. On May 17, 2010, the district denied h i s recusal motion. Accordingly, his request for relief with respect to that motion i s moot. As for his second request seeking an order to compel the district court to h o l d a hearing on his complaint, Mr. Brunsilius has failed to demonstrate that he i s entitled to the extraordinary remedy of a writ of mandamus. See In re Cooper T i r e & Rubber Co., 568 F.3d 1180, 1186-87 (10th Cir. 2009) (describing standard f o r writ of mandamus and noting petitioner must show "that his right to the writ is c l e a r and indisputable." (quotation omitted)). The petition for a writ of mandamus and the motion to proceed in forma p a u p e r i s are DENIED. Entered for the Court,

E L I S A B E T H A. SHUMAKER, Clerk

-2-

Case: 10-1210

Document: 01018433184

Date Filed: 06/02/2010

Page: 1

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80257 [phone]

Elisabeth A. Shumaker Clerk of Court

June 2, 2010

Douglas E. Cressler Chief Deputy Clerk

Wayne Brunsilius #65458 KCCC-Burlington P.O. Box 2000 Burlington, CO 80807 Wayne Brunsilius #65458 CTCF - Colorado Territorial Correctional Facility P.O. Box 1010 Canon City, CO 81215-1010 RE: 10-1210, In re: Wayne Brunsilius Dist/Ag docket: 1:10-CV-00739-BNB

Dear Appellant: Enclosed please find an order issued today by the court. Please contact this office if you have questions. Sincerely,

Elisabeth A. Shumaker Clerk of the Court

EAS/sls