Opinion
Civil Action No. 09-cv-00462-ZLW.
July 22, 2009
ORDER GRANTING REQUEST TO REINSTATE CASE
Applicant Freddy Lee Slack is in the custody of the Colorado Department of Corrections and currently is incarcerated at the Colorado State Penitentiary in Canon City, Colorado. The matter before the Court is the "Motion to Pursue Immedialy [sic] my Exhausted Claims Only" Mr. Slack filed on July 15, 2009. In the Motion, Mr. Slack seeks reconsideration of the Order of Dismissal that was entered on July 9, 2009, dismissing the instant 28 U.S.C. § 2254 Application, as a mixed petition, and reinstatement of the case.
This action, was dismissed without prejudice because Mr. Slack, in his Response to the Order to Show Cause, indicated that he did not desire to proceed with only exhausted claims and that he did not desire to return to state court to exhaust his ineffective assistance of counsel claim. Mr. Slack now asserts in the Motion that he will proceed with only his exhausted claims. The Court, therefore, will reinstate the action and order that the case will be drawn to a district judge and to a magistrate judge. See D.C.COLO.LCivR 8.2D.
Nonetheless, in keeping with the findings set forth in Magistrate Judge Boland's June 3, 2009, Order to Show Cause, the only claims Mr. Slack has exhausted are his mental competency claim and his jury instructions claim. With respect to Mr. Slack's jury selection claim, his speedy trial claim, and all of his due process claims, the claims are procedurally barred and will be dismissed. Furthermore, Mr. Slack's ineffective assistance of counsel claim is unexhausted and also will be dismissed without prejudice. Accordingly, it is
ORDERED that Mr. Slack's Motion to Pursue Exhausted Claims Only (Doc. # 31), filed July 15, 2009, is GRANTED. It is
FURTHER ORDERED that the Order of Dismissal and the Judgment, both filed on July 9, 2009, are vacated. It is
FURTHER ORDERED that the Clerk of the Court is directed to reinstate this action. It is
FURTHER ORDERED that Mr. Slack's jury selection claim, his speedy trial claim, and all of his due process claims are denied as procedurally barred, and the action is dismissed as to these claims. It is
FURTHER ORDERED that Mr. Slack's ineffective assistance of counsel claim is denied as unexhausted and the action is dismissed without prejudice as to this claim. It is
FURTHER ORDERED that Mr. Slack's mental competency claim and his jury instructions claim shall be drawn to a district judge and to a magistrate judge.