Opinion
Civil Action No. 10-cv-01096-BNB.
September 7, 2010
ORDER
This matter is before the Court on the "Motion for Leave to File Motion to Dismiss Counts One Through Four" that Respondents filed with the Court on September 2, 2010, in response to the Court's July 27, 2010, Order to File Pre-Answer Response.
It has come to the Court's attention that the instant action is the third habeas corpus action that Applicant, Brian P. Calcari, has filed attacking his conviction in case number 96CR587 in the district court for Larimer County, Colorado. See Calcari v. Ortiz , No. 04-cv-01298-ZLW (D. Colo. Sept. 14, 2004), appeal dismissed , No. 04-1422 (10th Cir. Feb. 9, 2005), cert. denied , No. 04-10562 (U.S. Oct. 3, 2005). In No. 04-cv-01298-ZLW, the habeas corpus application was denied and the action dismissed with prejudice as barred by the one-year limitation period in 28 U.S.C. § 2244(d). Judgment was entered on September 15, 2004. On February 9, 2005, the United States Court of Appeals for the Tenth Circuit denied a certificate of appealability, and dismissed the appeal. On October 3, 2005, the United States Supreme Court denied certiorari review. Mr. Calcari also filed a prior habeas corpus application in this Court that was dismissed without prejudice as a mixed petition because it contained both exhausted and unexhausted claims. See Calcari v. Colorado , No. 00-cv-00350-RPM (D. Colo. July 7, 2000), appeal dismissed , No. 00-1304, 2004 WL 1853952 (10th Cir. Dec. 19, 2000), cert. denied , 533 U.S. 921 (2001).
Therefore, prior to addressing the September 2 motion, the Court will direct the parties to brief the issue of whether the instant action is a second or successive habeas corpus action.
Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order Respondents shall file a Response to this Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the Response Applicant may file a Reply, if he desires.
DATED September 7, 2010, at Denver, Colorado.