Mallett v. Oliver

Filing 9

ORDER To Applicant To Show Cause why the habeas corpus application should not be denied for the reasons stated in this order, by Magistrate Judge Gordon P. Gallagher on 02/05/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03308-GPG
DAWANE ARTHUR MALLETT,
Applicant,
v.
J. OLIVER, ADX Warden/Trustee,
Respondent.

ORDER TO SHOW CAUSE

Applicant, Dawane Arthur Mallett, is a prisoner in the custody of the Federal
Bureau of Prisons at the United States Penitentiary, Administrative Maximum, in
Florence, Colorado. Mr. Mallett initiated this action by filing pro se an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1). On February 2,
2015, Mr. Mallett filed an amended Application for a Writ of Habeas Corpus Pursuant to
28 U.S.C. § 2241 (ECF No. 6).
The court must construe the amended application liberally because Mr. Mallett 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 (10 th 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 stated
below, Mr. Mallett will be ordered to show cause why this action should not be
dismissed.
Mr. Mallett seeks to be released from custody because his convictions in two

criminal cases allegedly were vacated in September 2014. Although Mr. Mallett does
not provide a clear statement of the specific claims he is asserting in the amended
application, the following statement clarifies his purpose in filing this habeas corpus
action:
The nature of this great writ is to challenge the illegal
detention of the Applicant, even after both convictions were
vacated and dismissed with prejudice: criminal case #2:02cr-00416-GEB-JFM and criminal case #1:05-cr-00057-RCESH, the warden is aware of his lack of jurisdiction to
continue to detain me and has attempted to conceal his
knowledge of this fact; it is clear that if a person has not
been “convicted or charged” and is being illegally detained
he has a constitutional right to challenge this in the court of
the appropriate jurisdiction and the courts shall order the
Respondent to show cause!
(ECF No. 6 at 2 (capitalization altered).)
In case number 2:02-cr-416-GEB-JFM, Mr. Mallett was sentenced to 654 months
in prison after being convicted in the United States District Court for the Eastern District
of California on two counts of aiding and abetting interference with commerce by
robbery, two counts of use of a firearm, one count of aiding and abetting armed bank
burglary and kidnapping, and one count of aiding and abetting carjacking a vehicle that
had been transported in interstate commerce. See United States v. Mallett, 209 F.
App’x 667 (9th Cir. 2006); see also United States v. Mallett, 2011 WL 475318 (E.D. Cal.
Feb. 4, 2011) (magistrate judge recommendation that 28 U.S.C. § 2255 motion be
denied). In case number 1:05-cr-57-RC-ESH, Mr. Mallett was sentenced to a
consecutive term of 216 months in prison after being convicted in the United States
District Court for the Eastern District of Texas of assault on a federal corrections officer
and possession of a prohibited object by an inmate. See United States v. Mallett, 250
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F. App’x 614 (5th Cir. 2007) (per curiam); see also Mallett v. United States, No. 1:07-CV922, 2010 WL 148192 (E.D. Tex. Jan. 8, 2010) (order denying 28 U.S.C. § 2255
motion).
The docketing records in Mr. Mallett’s criminal cases are available on the Public
Access to Court Electronic Records (“PACER”) website and the court may take judicial
notice of proceedings in other federal courts that have a direct relation to matters at
issue. See St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169,
1172 (10th Cir. 1979). The court has examined the docketing records in Mr. Mallett’s
criminal cases on PACER and finds no evidence or indication that either conviction has
been vacated. Therefore, Mr. Merritt will be ordered to show cause why this habeas
corpus action should not be dismissed because the factual premise on which his claims
rely, his assertion that his criminal convictions have been vacated, is incorrect.
Alternatively, to the extent Mr. Mallett may be claiming that his convictions should
be vacated for some reason, he must show cause why this action should not be
dismissed for lack of statutory jurisdiction because he has an adequate and effective
remedy available to him in the sentencing courts pursuant to 28 U.S.C. § 2255. See
Prost v. Anderson, 636 F.3d 578, 584 (10 th Cir. 2011). Accordingly, it is
ORDERED that Mr. Merritt show cause in writing within thirty (30) days from
the date of this order why the habeas corpus application should not be denied f or the
reasons stated in this order. It is
FURTHER ORDERED that if Mr. Merritt fails to show good cause within the time
allowed, the application will be denied and the action will be dismissed without further
notice.
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DATED February 5, 2015, at Denver, Colorado.
BY THE COURT:
S/ Gordon P. Gallagher
United States Magistrate Judge

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