Opinion
Civil Action No. 11-cv-02087-BNB
09-26-2011
JEFFERY L. ELLIS, Applicant, v. RENE G. GARCIA, Respondent.
ORDER
Applicant Jeffery L. Ellis, filed pro se on September 20, 2011, a document titled "Appeal from an order of the Magistrate Court to show cause on only one Claim" (Doc. No. 6). Mr. Ellis objects to the Order to Show Cause entered in this action by Magistrate Judge Boyd N. Boland on September 12, 2011. For the reasons stated below, the objection will be overruled.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter designated to a magistrate judge to hear and determine where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law. The Court has reviewed the file and finds that Magistrate Judge Boland's Order to Show Cause is not clearly erroneous or contrary to law.
Mr. Ellis filed pro se a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging the validity of the sentence imposed by the United States District Court for the Eastern District of Illinois in conjunction with his conviction for one count of violation of 18 U.S.C. § 922(g)(1). Mr. Ellis was sentenced to a 288- month term of imprisonment with the BOP, followed by a 36-month term of supervised release. He asserts in his § 2241 Application that "his mandatory guideline range was 100-125 months not the 288 months [imposed] by the sentencing court on judge found facts." Application, at 1. He further claims that trial counsel was ineffective in failing to challenge the enhancement of his sentence under 18 U.S.C. § 924(e)(1) by five prior expired state felony convictions. Id. Mr. Ellis asserts that his continued custody violates the Constitution. Id. at 4. In the September 9 Order, Magistrate Judge Boland directed Mr. Ellis to show cause why this habeas corpus action should not be dismissed because, to the extent he is challenging the validity of his criminal sentence, he has an adequate and effective remedy available to him in the sentencing court. Mr. Ellis asserts in his objection filed on September 20 that the Magistrate Judge failed to address his second claim, which is that he was never afforded a fair opportunity to test the validity of his three-year term of supervised release because that sentence had not yet commenced at the time of sentencing.
Mr. Ellis's objection will be overruled because his argument relates to the substance of Magistrate Judge Boland's show cause order. Applicant's claim challenging the validity of his term of supervised release derives from his claim challenging the length of his prison sentence. Mr. Ellis therefore should raise his argument in his response to Magistrate Judge Boland's show cause order. Accordingly, it is
ORDERED that Applicant's objections filed on September 20, 2011, are overruled. It is
FURTHER ORDERED that Applicant's request for appointment of counsel (Doc. No. 6) is DENIED. It is
FURTHER ORDERED that Applicant shall have thirty (30) days from the date of this order to file a response to Magistrate Judge Boland's September 12, 2011, Order to Show Cause.
DATED at Denver, Colorado, this 26th day of September, 2011.
BY THE COURT:
LEWIS T. BABCOCK, Senior Judge
United States District Court
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-02087-BNB
Jeffery L Ellis
Reg. No. 08685-424
FCI Englewood
9595 W Quincy Ave
Littleton, CO 80123
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on September 26, 2011.
GREGORY C. LANGHAM, CLERK
By:__________
Deputy Clerk