Mathison v. Berkebile

Filing 21

MEMORANDUM OPINION AND ORDER denying without prejudice 6 Motion to Dismiss for Lack of Jurisdiction (Respondent is allowed to brief the issue of judicial estoppel by December 31, 2013); granting 12 Motion for Leave to Proceed in forma pauperis; holding in abeyance 4 Motion for Bail pending the Court's consideration of Respondent's submission regardinge estoppel. Signed by U. S. District Judge Lawrence L. Piersol on 12/20/13. (Attachments: # 1 9/17/08 Mathison pro se petition pursuant to 28 USC 2241, # 2 10/14/08 Oppotision to Motion for Release in Mathison v. Wiley, # 3 3/26/09 Order and Judgment in Mathison v. Wiley) (DJP)

Case 1:08-cv-02005-ZLW Document 12 Filed 10/14/08 USDC Colorado Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 08-cv-02005-BNB

EUGENE H. MATHISON,
Applicant-Appellant,

v.
RON WILEY, Warden,
Respondent-Appellee.

OPPOSITION TO MOTION FOR RELEASE

Respondent-Appellee Warden Ron Wiley, through undersigned counsel, files
this Opposition to Applicant-Appellant Eugene H. Mathison's Motion for Release

Pending Review.
1. Mathison is a federal prisoner, Register Number 07835-073, currently
incarcerated at the Federal Prison Camp in Florence, Colorado. As the district court
noted, he was originally convicted and sentenced in 1997 by the United States District
Court for the District of South Dakota, and it is that original conviction and sentence
which he now challenges. Doc. 5. Mathison has previously sought relief in prior

Case 1:08-cv-02005-ZLW Document 12 Filed 10/14/08 USDC Colorado Page 2 of 5

applications under 28 U.S.C . § 2255 in the District of South Dakota and the Eighth
Circuit. Id.
2. Mathison commenced this action under 28 U.S.C. § 2241. As the court
correctly observed, however, because this action challenges the validity of the
original conviction and sentence, it is properly brought pursuant to § 2255 in the
district in which the conviction and sentence were imposed. Id. Concluding that
there was no showing that § 2255 was inadequate or ineffective, the district court
dismissed the Application without ordering the government to respond. Id. Mathison
now seeks release, pursuant to Fed.R.App.P. 23(b)(3), pending disposition of his
appeal from the district court's dismissal.
3. The Motion does not address the applicability of Rule 23(b)(3) to this case,
but instead focuses on the merits ofthe underlying appeal. While counsel could find
little direct authority, and none in this Circuit, construing the application of Rule 23,
a recent decision ofthe Ninth Circuit provides guidance. In Nadarajah v. Gonzales,
443 F.3d 1069 (9 th Cir. 2006), that court held that the proper standard for evaluating
such a motion is:
the traditional standard for interim injunctive relief, according to which
the moving party must show either (1) a probability of success on the
merits and the possibility of irreparable harm, or (2) that serious legal
questions are raised and the balance of hardships tips sharply in the
moving party's favor. As we have explained, these two alternatives
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represent extremes ofa single continuum, rather than two separate tests.
Under this analysis, the greater the relative hardship to the moving party,
the less probability of success must be shown.
443 F.3d at 1083-84 (internal quotations, brackets, and citations omitted). Accord

Anthony v. Texaco, Inc., 803 F.2d 593, 599 (10th Cir. 1986).
4. Applying this standard to the instant case, there has been no showing, or
even suggestion, ofirreparable harm. Moreover, no serious legal questions are raised,
as Mathison himself acknowledges that he made a "foolish" or "a poor choice" in
deciding to fire his attorney pre-trial and proceeding pro se at triaL Application, doc.
2 at 6, 7. Each of his complaints, including those relating to alleged bias on the part
ofthejudicial officers, and alleged ineffectiveness ofhis erstwhile counsel, have been
previously litigated, either on direct appeal, see United States v. Mathison, 157 F.3d
541 (8 th Cir. 1998), cert. denied, 525 U.S. 1089, reh 'gdenied, 526 U.S. 1060 (1999),
or collaterally, see, e.g., Mathison v. United States, no. CIY 99-4208/96-cr-40 122 (D.
S.D. June 27,2000), aff'd, no. 01-1072 (8 th Cir. Jan. 30, 2001), cert. denied, 533 U.S.
911 (2001); Mathison v. United States, no. CIY 00-4055 (D. S.D. Dec. 19,2000),

aff'd, no. 01-1078 (8 th Cir. Mar. 21, 2001), cert. denied, 534 U.S. 860 (2001);
Mathison v. United States, no. CIY 01-4153 (D. S.D. June 3, 2001), aff'd, no. 01­
3988 (8 th Cir. Feb. 22, 2002), cert. denied, 536 U.S. 930 (2002); Mathison v. Wiley,
no. 08-1075 (10th Cir. June 17, 2008)(unpublished).
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5. Mathison has little or no probability of success, given there is neither a
relevant change in law, nor any newly discovered evidence proffered which could
provide the basis for relief.

The balance of hardships is decidedly in the

government's favor, as Mathison is not entitled to immediate release - according to
the Inmate Locator at bttp:llbop.gov/iloc2/Locatelnmate.jsp, his projected release
date is December 2,2014 - and under a best-case scenario he might hope that a show
cause order might issue necessitating a government response. But this would appear
highly unlikely.
CONCLUSION

The Motion should be denied.

Respectfully submitted,

TROY A. EID

United States Attorney

slPaul Farley
PAUL FARLEY
Assistant U.S. Attorney
Colorado No. 16512
1225 17th Street, Suite 700
Denver, Colorado 80202
303.454.0100
USACO.ECFappellate(i4 usdo j.gOY
Attorneys for Respondent-Appellee

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CERTIFICATE OF SERVICE

I hereby certify that on this 14th day ofOctober, 2008, a copy ofthe foregoing
Opposition to Motion for Release was mailed, postage prepaid, to:

Eugene H. Mathison, Reg. No. 07835-073
FPC - Florence
Post Office Box 5000
Florence, Colo. 81226

slDorothv Burwell
United States Attorney's Office

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