Ackerman v. Zupan et al

Filing 7

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/2/15. No Certificate of Appealability will issue. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03168-GPG

EDWIN MARK ACKERMAN,
Applicant,
v.
WARDEN ZUPAN, and
UNITED STATES ARMY,
Respondents.

ORDER OF DISMISSAL

Applicant Edwin Mark Ackerman is in the custody of the Colorado Department of
Corrections at the Colorado Territorial Correctional Facility in Cañon City, Colorado.
Applicant, acting pro se, initiated this action by filing an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241. On December 8, 2014, Magistrate Judge
Gordon P. Gallagher entered an Order to Show Cause and directed Applicant to
respond and state why this action should not be dismissed as successive because the
Application contains only claims that could have been raised in an earlier action.
Applicant also was directed to demonstrate cause and any resulting prejudice for the
default or in the alternative show a fundamental miscarriage of justice if the claims are
not addressed. Applicant filed a Response on December 17, 2014.
The Court must construe the Application liberally because Applicant is a pro se
litigant. 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 act as a pro se litigant’s
advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will
deny the Application and dismiss the action as successive.
In the Order to Show Cause, Magistrate Judge Gallagher noted the background
of Applicant’s criminal and civil proceedings as they may relate to the detainer issue.
Magistrate Judge Gallagher stated as follows:
In 1995, Applicant pled guilty in court-martial proceedings to rape
and larceny in violation of Articles 120 and 121 of the Uniform Code of
Military Justice, see 10 U.S.C.§§ 920, 921, and was sentenced, in part, to
life imprisonment. See Ackerman v. Davis, et al. No. 13-cv-03487-RM,
ECF No. 17-2 (D. Colo. July 7, 2014). On September 19, 1995, the
Department of the Army entered a General Court-Martial Order, which
provided that the court-martial sentence of confinement beyond
twenty-seven years was suspended. Id. The General Court-Martial Order
further provided that the sentence of confinement is “postponed” and will
not begin until Applicant “has been permanently released to the armed
forces.” Id. The confinement was postponed so that Applicant could be
prosecuted by the State of Colorado in separate criminal proceedings. Id.,
ECF No. 17-3 at 2. On September 29, 1995, Applicant pled guilty to
second-degree kidnapping and was sentenced in Case No. 94cr3662 in El
Paso County, Colorado, to thirty-five years’ imprisonment in the DOC. Id.,
ECF No. 1 at 2; ECF No. 17-1. Applicant has a mandatory release date of
April 21, 2026, in his State of Colorado conviction. Id., ECF No. 17-1.
On October 26, 1995, the Army lodged a detainer with the DOC,
requesting notification by the DOC to either the Fort Carson Regional
Corrections Facility, the U.S. Army Personnel Control Facility, or the U.S.
Disciplinary Barracks before releasing Applicant from civilian confinement
so that he could be returned to military jurisdiction. Id., ECF No. 17-3 at 2.
Applicant filed a § 2241 application in this Court, see Ackerman,
No. 13-cv-03487-RM (noted above), and raised three claims that
challenge the Army's detainer. The court in Case No. 13-cv-03487-RM
found both the detainer and deprivation of parole due to the detainer
lawful and the sentencing arrangement between the Army and the State of
Colorado a matter of comity, which does not violate constitutional law.
Ackerman, No. 13-cv-03487-RM, ECF No. 20 at 4-5 and 7-8. The § 2241
application was dismissed on the merits with prejudice. Id. at 7.
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In this action, Applicant raises four claims regarding the Army's
detainer. First, Applicant contends that, even though the State sentence
is consecutive, because he is held in the State's custody the military
sentence is concurrent to the State sentence and the detainer should be
rescinded. Second, Applicant asserts he should be released with a
certificate of discharge because he has served his military sentence.
Third, Applicant contends that, under “858. Art. 58 Execution of
Sentence,” because he can be confined in any prison to serve his military
sentence, the time he is incarcerated in the State prison should be
counted toward his military sentence. Finally, Applicant contends his
military sentence cannot be consecutive to his State sentence because he
was not convicted in State court until after his military conviction.
Civil Action No. 14-cv-03168, ECF No. 5 at 1-3.
In the Response, Applicant asserts that this “motion” is a “continuation,”
apparently of his first § 2241 action, challenging the 1995 detainer, but the claims he
asserts in this action are more in depth but not new. Id. ECF No. 6 at 2. Applicant
further asserts that his first two claims are the same as the claims he raised in Civil
Action 13-cv-03487-RM, but he is asking for “reconsideration” by the Court of these
claims. Id. Applicant also contends that by definition it is impossible for his military
sentence to be consecutive to his state conviction because he was convicted in his
military sentence prior to his state conviction. Id. at 2. Applicant concludes that his
constitutional rights have been violated and he has suffered a miscarriage of justice
because the State of Colorado continues to acknowledge the military detainer even
though his military sentence should have been served prior to the state sentence.
Applicant asks that the detainer either be “enacted” or rescinded. Id. at 2.
Upon review of all four claims and the Response, the Court finds Applicant’s only
complaint is the sequence in which he is serving his state and military sentences and
the affect his detainer has on the execution of his state sentence. Furthermore,
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Applicant essentially has restated the same arguments in this case that he raised in
Case No. 13-cv-03487-RM in his reply, ECF No. 18. These, claims were found to be
meritless in Case No. 13-cv-03487-RM. Relying on Muhammed v. United States, 953
F.2d 1391 (10th Cir. 1992), and Hernandez United States Att’y Gen., 689 F.2d 915, 917
(10th Cir. 1982), the Court found in Case No. 13-cv-03487-RM that the federal
government and the State, are free to determine which sentence is to be served first as
long as the sentences are not served in a piecemeal fashion, and a person violating
both federal and state statutes is not able to challenge the sequence of his
punishments. Applicant, therefore, has not asserted new claims and this action is
properly dismissed as successive. 28 U.S.C. § 2244(b); Shirley v. Davis, 521 F. App’x
647, 649 (10th Cir. 2013) (finding a state habeas petitioner is not required to obtain
authorization from the Tenth Circuit for review of a successive claim that was presented
in a prior § 2241) (citing Stanko v. Davis, 617 F.3d 1262, 1269 n. 5 (10th Cir. 2010).
Even if the Court were to find Applicant’s claims are new he has failed to
demonstrate cause and prejudice or a fundamental miscarriage of justice as to why he
was not able to raise the claims in Case No. 13-cv-03487-RM. Id. Applicant’s only
claims of a fundamental miscarriage of justice is that he is being forced to serve his
state sentence before his military sentence, and he has been subject to a detainer that
was entered by the Army in 1995.
Because it has been determined that Applicant does not have a right to have his
sentences served in any certain sequence he is not subjected to a fundamental
miscarriage of justice in having to serve his state sentence first. Furthermore, as
addressed in Case No. 13-cv-03487-RM, the presence of a detainer alone does not
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impinge on Applicant’s constitutional rights because he does not have a right to be
under a certain sovereign’s custody, Wall v. Hudspeth, 108 F.2d 865, 866 ( 10th Cir.
1940); Mingo v. United States, 350 F.2d 213 (10th Cir. 1965), or to be placed on parole,
Carson v. Exec. Director, Dep’t of Parole, 292 F.2d 468, 469 (10th Cir. 1961).
The Court notes that since this is Applicant’s second § 2241 habeas action
challenging the same detainer and consecutive military and state sentences, and the
claims he raises in this Application are repetitive of the ones he raised in Case No. 13cv-03487-RM, which were found to be meritless, any future actions filed by Applicant
setting forth filings on the same meritless issues may result in an order requiring him to
show cause why this Court should not summarily dismiss such an action and impose
sanctions. See Andrews v. Heaton, 483 F.3d 1070, 1077-78 (10th Cir. 2007). The
Court also may limit Applicant’s ability to proceed in forma pauperis in the future,
regardless of his financial ability to pay such costs and fees, based on his history of
filing frivolous petitions. See In re McDonald, 489 U.S. 180, 183-85 (1989) (limiting
petitioner from proceeding in forma pauperis in future petitions for extraordinary writs
based on petitioner’s abuse of judicial resources). The Court is not prohibited from
summary dispositions and limitations on frivolous or abusive filings against a pro se
litigant. See Haworth v. Royal, 347 F.3d 1189, 1192 (10th Cir. 2003) (citing Stafford v.
United States, 208 F.3d 1177, 1178-79 (10th Cir. 2000)).
The Court also notes that this is not the first time that Applicant has been warned
about possible sanctions for filing frivolous and abusive filings. See Ackerman v.
Miilyard, et al., No. 10-cv-01708-ZLW, ECF No. 15 (D. Colo. Aug. 25, 2010)
The Court also certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from
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this order would not be taken in good faith and therefore in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Applicant files a notice of appeal he also must pay the full $505 appellate
filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
Accordingly, it is
ORDERED that the Application is denied and the action is dismissed with
prejudice as successive and an abuse of the writ. It is
FURTHER ORDERED that because in part Applicant is challenging the
execution of his state sentence the Court must address a Certificate of Appealability,
which the Court will not issue because Applicant has not made a substantial showing of
the denial of a constitutional right. It is
FURTH ORDERED that leave to proceed in forma pauperis on appeal is denied.
DATED at Denver, Colorado, this

2nd

day of

February

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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