Broemmel v. Lappin

Filing 29

ORDER re: 26 Brief of Applicant in Support of Writ of Habeas Corpus shall be treated as an Amended Petition for Writ of Habeas Corpus. The government shall file a response to the amended petition no later than February 24, 2012. by Judge John L. Kane on 1/25/2012. (ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 11-cv-01177-JLK
MICHAEL BROEMMEL,
Petitioner,
v.
HARLEY G. LAPPIN, Director, United States Bureau of Prisons,
Respondent.

ORDER
Kane, J.
On April 26, 2011, Petitioner Michael Broemell, seeking to serve his state and federal
sentences concurrently rather than consecutively, filed a motion to quash his federal detainer.
Finding that Mr. Broemmel was challenging the execution, not the validity of his sentence, I
ordered that his Motion to Quash be liberally construed as asserting claims pursuant to 28 U.S.C.
§ 2241. On May 31, 2011, petitioner filed an Application for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241. In its initial response to the application, the government asserted that the
Petitioner had not exhausted all administrative remedies. After Petitioner refuted that claim in his
reply, the government withdrew its affirmative defense. On August 15, 2011, I ordered the
government to show cause why the Writ of Habeas Corpus should not be granted, and the
government filed its response to the order to show cause on September 6, 2011. Petitioner then
filled a reply on September 26, 2011.
Significantly, Petitioner’s reply raises a number of claims not addressed in his first
application. Because Petitioner is appearing pro se in this matter, I liberally construe his brief as a
1

request for leave to file an amended petition pursuant to Fed. R. Civ. P. 15(a)(2). Finding that
justice so requires, his motion is GRANTED and his Brief of Applicant in Support of Writ of
Habeas Corpus (doc. 26) shall be treated as an Amended Petition for Writ of Habeas Corpus.1 The
government shall file a response to the amended petition no later than February 24, 2012.

Dated: January 25, 2012

BY THE COURT:
/s/John L. Kane
Senior U.S. District Court Judge

1

Although 28 U.S.C. § 2244 requires that an applicant seeking to file a second or
successive petition for writ of habeas corpus obtain authorization from the court of appeals, that
requirement is inapplicable to amended petitions filed before a decision on the merits resolving
the petition of which amendment is sought. See Ching v. United States, 298 F.3d 174, 177 (2d
Cir. 2002) (“for a petition to be ‘second or successive’ it must at minimum be filed subsequent to
the conclusion of a proceeding . . . that has reached a final decision”) (citations omitted); Woods
v. Carey, 525 F.3d 886, 890 (9th cir. 2008) (a pro se litigant’s second petition for writ of habeas
corpus, filed before a final decision on the first petition, should be liberally construed as a
motion to amend his pending habeas petition).
2