Ackerman v. Zupon

Filing 10

ORDER OF DISMISSAL AND TO SHOW CAUSE by Judge Lewis T. Babcock on 3/24/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02549-GPG
EDWIN MARK ACKERMAN,
Applicant,
v.
WARDEN ZUPON,
Applicant.

ORDER OF DISMISSAL AND
TO SHOW CAUSE

Applicant Edwin Mark Ackerman has filed pro se an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. ' 2241, ECF No.1. Applicant also has filed a
Prisoner=s Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. ' 1915 in a
Habeas Corpus Action. The Court granted Applicant’s ' 1915 motion on February 2,
2016.
The Court must construe the Application 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 cannot act as an
advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Application will be denied and the action dismissed. Applicant will be ordered
to show cause why he should not be subject to filing restrictions.

In the Nature of the Case section of the Application, Applicant asserts that he was
convicted by a General Court Martial on July 7, 1995 and sentenced to a
term of [t]wenty seven (27) years. Two (2) months later the State of
Colorado convicted the Applicant to a term of [t]hirty-five (35) years to run
consecutive to the Military=s sentence, but the State of Colorado placed the
Applicant in their custody whereby he is still being held. By a request of the
State of Colorado the Military had placed a detainer upon the Applicant
because he was to answer for the State charges against him. The Military
has had primary jurisdiction since July 7, 1995, but they have since by
refusing to acquire said jurisdiction have lost that jurisdiction by allowing the
State of Colorado to take and retain jurisdiction since the release of the
Applicant into their custody for their Court proceeding.
ECF No. 1 at 2.
In Claim One, Applicant asserts that pursuant to People v. Beecroft, 874 P.2d
1041, 1044 (Colo. App. May 16, 1994) (rehearing denied June 6, 1991), his detainer
should be rescinded, because A[a] person who is confined for an offense prior to
imposition of sentence for said offense is entitled to credit against the term of his sentence
for the entire period of such confinement. At the time of sentencing the court shall make
a finding of the amount of presentence confinement to which the offender is entitled. . . .@
ECF No. 1 at 4. Also, in support of this claim, Applicant sets forth the provisions of '
4105 and ' 3185, apparently from the United States Code, which state the provisions for
calculating presentence confinement. Id.
In Claims Two and Three, Applicant asserts that the State of Colorado has been
using the detainer to keep Applicant from progressing to a lower custody level and from
being eligible for parole. Id. at 5. Finally, in Claim Four, Applicant contends that he is
entitled to good time credits pursuant to the Uniform Code of Military Justice, which if
calculated at ten days per month would equate to time served and his military sentence
would be discharged. Id. at 6.

In the dismissal order in Ackerman v. Zupan, et al., No. 14-cv-03168-LTB (D. Colo.
Feb. 2, 2015), this Court found as follows.
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
Apostponed@ and will not begin until Applicant Ahas 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
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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.
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 A858. 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 Amotion@ is a
Acontinuation,@ 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 Areconsideration@ 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 Aenacted@ 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 [sic] his detainer has on the execution
of his state sentence. Furthermore, Applicant essentially has restated the
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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 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. 13-cv-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
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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. Milyard, et al., No. 10-cv-01708-ZLW, ECF No.
15 (D. Colo. Aug. 25, 2010)
No. 14-cv-03168-LTB, ECF No. 7 at 2-5.
Based on the claims raised in Case No. 14-cv-03168-LTB, which were dismissed
with prejudice and as an abuse of the writ, and the findings below, this Court finds
Applicant=s claims in this case are successive of the claims he has asserted previously,
most recently in Case No. 14-cv-03168-LTB, and subject to dismissal.
First, in this case, Applicant=s reliance on '' 4105 and 3185, for support that his
detainer should be rescinded, is without legal basis. None of the issues Applicant raises
pertain to the provision of presentence credit in the current sentence he is serving in the
State of Colorado. Like in Case No. 14-cv-03168, this Court finds that Applicant=s
complaint is about the sequence he is serving his state and military sentences and the
effect his military detainer has on the execution of his state sentence. Applicant was told
in Case No. 13-cv-03487-RM that he does not have a right to have his sentences served
in any certain sequence and that he is not subjected to a fundamental miscarriage of
justice in having to serve his state sentence first. Applicant=s sequence of sentences
claim is successive and meritless.
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Applicant=s ineligibility for parole claim also is successive and meritless. He
raised this claim in Case No. 13-cv-03487-RM, and the claim was dismissed because
ineligibility for parole does not impinge upon any constitutional right.
The Court further finds that even if Applicant=s presentence and good time credit
claims are new and pertain to Applicant’s future military sentence, they are not reviewable
by the Court at this time. Applicant is not serving his military sentence. This Court will
not consider at this time the Department of the Army regulations or Department of
Defense directives that govern the award of good time credits. In other words,
Applicant=s good time credit claim affects the execution of his future military sentence.
To the extent that this claim is viable in a ' 2241 action, it is not properly presented to the
Court at this time.
Applicant was warned in Case No. 14-cv-03168-LTB that any future actions filed
by Applicant, which state meritless or repetitive claims, may result in filing restrictions.
A[T]he right of access to the courts is neither absolute nor unconditional, and there
is no constitutional right of access to the courts to prosecute an action that is frivolous or
malicious.@ Tripati v. Beaman, 878 F.2d 351, 353 (10th Cir. 1989) (citations omitted) (per
curiam). AFederal courts have the inherent power to regulate the activities of abusive
litigants by imposing carefully tailored restrictions in appropriate circumstances.@
Andrews v. Heaton, 483 F.3d 1070, 1077 (10th Cir. 2007) (citing Sieverding v. Colo. Bar.
Ass=n, 469 F.3d 1340, 1343 (10th Cir. 2006); Tripati v. Beaman, 878 F.2d 351, 351 (10th
Cir. 1989)).

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If a pro se party signs a pleading in violation of Fed. R. Civ. P. 11(b) a court Amay .
. . impose an appropriate sanction@ upon that party. See Fed. R. Civ. P. 11(c). Rule 11
serves several purposes, including, but not limited to, (1) deterring future litigation abuse;
(2) punishing present litigation abuse; and (3) streamlining court dockets and facilitating
case management. White v. General Motors Corp., Inc., 908 F.2d 675, 683 (10th Cir.
1990) (citing American Bar Association, Standards and Guidelines for Practice Under
Rule 11 of the Federal Rules of Civil Procedure (1988), reprinted in, 5 C. Wright, A. Miller
& M. Kane, Federal Practice and Procedure 212, 235-36 (Supp. 1989)). Deterrence is
the primary goal of a sanction. See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384
(1990). In order to comply with Rule 11 and avoid sanctions thereunder, a pro se party=s
actions must be objectively reasonable. White, 908 F.2d at 683 (10th Cir. 1990). A
pattern of groundless and vexatious litigation will support an order enjoining a litigant from
filing any claims without first seeking prior leave of court. See Ketchum v. Cruz, 961 F.2d
916, 921 (10th Cir. 1992); Winslow v. Romer, 759 F. Supp. 670, 677-78 (D. Colo. 1991);
Colorado ex rel. Colo. Judicial Dep=t v. Fleming, 726 F. Supp. 1216, 1221 (D. Colo. 1989).
The Court may, in its discretion, place reasonable restrictions on any litigant who
files non-meritorious actions and who generally abuses judicial process. Phillips v.
Carey, 638 F.2d 207, 209 (10th Cir. 1981). These restrictions may be directed to provide
limitations or conditions on the filing of future suits. Id. Injunctions restricting further
filings are appropriate where (1) the litigant's lengthy and abusive history is set forth; (2)
the court provides guidelines as to what the litigant may do to obtain its permission to file
an action; and (3) the litigant receives notice and an opportunity to oppose the court=s

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order before it is implemented. Tripati, 878 F.2d at 353-54.

Plaintiff has the right to

notice and to oppose, in writing, the imposition of future restrictions. Id. at 354.
While this Court has an obligation to give pro se litigants wide latitude, see Haines,
404 U.S. 519, the Court cannot accept the filing of meritless and repetitive lawsuits.
Given that Applicant now has filed at least three lawsuits in this Court challenging the
same detainer and consecutive military and state sentences, the Court will direct
Applicant to show cause why he should not be enjoined from filing future pro se actions in
this Court that pertain to the sequence he is serving his state and military sentences, the
Department of the Army detainer, and any related meritless claims.
This Court has the power to impose still further sanctions such as costs, attorney
fees, and double costs for the filing of frivolous actions, as well as an outright ban on
certain proceedings, whether pro se or counseled. Fed. R. Civ. P. 11. Although the
Court has not imposed such sanctions here, the Court reserves the right to do so if
Applicant continues to submit actions that pertain to the sequence he is serving his state
and military sentences, the Department of the Army detainer, and any related meritless
claims. Accordingly, it is
ORDERED that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
' 2241 is DENIED, and this case is DISMISSED as successive and an abuse of the
writ. It is
FURTHER ORDERED that Applicant show cause why the United States District
Court for the District of Colorado should not enjoin him from filing any future actions in this

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Court that pertain to the sequence he is serving his state and military sentences, the
Department of the Army detainer, and any related meritless claims. It is
FURTHER ORDERED that Applicant shall file a Response to this Order to Show
Cause within thirty days of the date of the Order. It is
FURTHER ORDERED that if Applicant fails to respond within thirty days an order
enjoining him from filing future pro se pleadings as described above shall be entered by
the Court. It is
FURTHER ORDERED that at this time the only proper filing is a Response to
this Order to Show Cause. Other pleadings or motions will be ordered stricken.
DATED at Denver, Colorado, this

24th

day of

March

, 2016.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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