Melina v. Pollard
Filing
32
ORDER overruling 17 Out of Time Motion Asking District Court Judge to Reconsider and/or Make a Ruling on Petitioner's Motion to Stay and Hold Case No. 14-cv-00637-BNB in Abeyance by Judge Lewis T. Babcock on 12/19/14.(dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00637-GPG
DANIEL G. MELINA,
Applicant,
v.
WILLIAM POLLARD, and
JOHN W. SUTHERS, The Attorney General for the State of Colorado,
Respondents..
ORDER OVERRULING OBJECTION
Applicant, Daniel G. Melina, has filed pro se a document titled “Out of Time
Motion Asking District Court Judge to Reconsider and/or Make a Ruling on Petitioner’s
Motion to Stay and Hold Case No. 14-cv-00637-BNB in Abeyance” (ECF No. 17) asking
the Court to reconsider the April 30, 2014 Order Denying Motion to Stay (ECF No. 8).
On April 30, 2014, Magistrate Judge Boyd N. Boland issued an order denying Mr.
Melina’s request to stay his federal habeas proceedings so that he may return to state
court to fully exhaust claims two, three, four, and six in his Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) challenging his conviction in
the Adams County District Court. The Court determined that Mr. Melina did not meet
the standard for granting a stay under Rhines v. Weber, 544 U.S. 269 (2005) (holding
that a district court has discretion in limited circumstances to stay a mixed petition while
the petitioner returns to state court to exhaust his unexhausted claims). Specifically, Mr.
Melina did not demonstrate that he had good cause for his failure to exhaust his claims
first in state court. On July 11, 2014, Mr. Melina filed his document objecting to the April
30 order and asking that a “district judge reconsider and/or rule on his stay and
abeyance motion so that if its denied he may then appeal to the court of appeals for the
tenth circuit.” (See ECF No. 17 at 1-2.) He also asserts that he meets all three factors
set forth in Rhines v. Weber, 544 U.S. 269 (2005). In support, he contends that his
postconviction appellate counsel was ineffective and that he only had two months “left
before his allowable time to file his 2254 completely ran out.” (Id. at 2.)
The Court must construe the document liberally because Applicant is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons state below,
the document will be construed liberally as an objection pursuant to 28 U.S.C. §
636(b)(1)(A) and the objection will be overruled.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter
designated to a magistrate judge to hear and determine where it has been shown that
the magistrate judge’s order is clearly erroneous or contrary to law. The Court has
reviewed the file and finds that the April 30 order entered by Magistrate Judge Boland is
not clearly erroneous or contrary to law. Therefore, the objection will be overruled.
Accordingly, it is
ORDERED that the objection titled “Out of Time Motion Asking District Court
Judge to Reconsider and/or Make a Ruling on Petitioner’s Motion to Stay and Hold
Case No. 14-cv-00637-BNB in Abeyance” (ECF No. 17)” that Applicant filed on July 11,
2014, and which the Court has construed liberally as an objection pursuant to 28 U.S.C.
2
§ 636(b)(1)(A), is overruled. It is
FURTHER ORDERED that Mr. Melina continues to have twenty-one (21) days
from the date of the minute order of December 18, 2014, in which to file his Reply to
Respondents’ Pre-Answer Response.
DATED at Denver, Colorado, this 19th
day of
December
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
3
, 2014.
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