Stetzel v. Attorney General of State of Colorado

Full title: PHILIP EDWARD STETZEL, Applicant, v. THE ATTORNEY GENERAL OF THE STATE OF…

Court: United States District Court, D. Colorado

Date published: Jan 3, 2006

Civil Case No. 04-cv-01531-REB-BNB (D. Colo. Jan. 3, 2006)

Opinion

Civil Case No. 04-cv-01531-REB-BNB.

January 3, 2006

ORDER ADOPTING RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND DENYING HABEAS CORPUS APPLICATION ON THE MERITS

ROBERT BLACKBURN, District Judge

This matter is before me on the Recommendation of United States Magistrate Judge [#36], filed October 24, 2005.¹ The Magistrate Judge recommends that the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#3], filed July 26, 2004, be denied. The applicant filed an Answer/Objection to Recommendation by U.S. Magistrate Judge [#48] on December 8, 2005. I adopt the recommendation and deny the application on the merits.²

1 See Rule 8(b)(1) of the Rules Governing Proceedings in the United States District Court on application under Section 2254 of Title 28, United States Code: (b) Function of the magistrate. (1) When designated to do so in accordance with 28 U.S.C. § 636(b), a magistrate may conduct hearings, including evidentiary hearings, on the motion, and submit to a judge of the court proposed findings and recommendations for disposition.

2 Applicant's claims were capable of resolution on the record; thus, no hearing is required. See Torres v. Mullin, 317 F.3d 1145, 1161 (10th Cir.), cert. denied, 124 S.Ct. 562 (2003).

As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed, and have considered carefully the recommendation, the objections, and the applicable case law.³ In addition, because the applicant is proceeding pro se, I have construed his pleadings more liberally and have held them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Belmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). I find plaintiff's objections to be unsubstantiated, imponderous, and without merit. Contrastingly, the recommendation is detailed and well-reasoned. Therefore, I find and conclude that the arguments advanced, the authorities cited, and the findings of fact, conclusions of law, and recommendations proposed by the Magistrate Judge should be approved and adopted.

3 See Rule 8(b)(4) of the Rules Governing Proceedings in the United States District Court on application under Section 2254 of Title 28, United States Code: (b)(4) A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify in whole or in part any findings or recommendations made by the magistrate.

After consideration of the relevant state court proceedings in Colorado, I determine that no evidentiary hearing is required.⁴ Since no evidentiary hearing is required, I decline to appoint counsel sua sponte for the applicant.⁵

4 See Rule 8(a) of the Rules Governing Proceedings in the United States District Court on application under Section 2254 of Title 28, United States Code:(a) Determination by court. If the motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.

5 Cf. Rule 8(c) of the Rules Governing Proceedings in the United States District Court on application under Section 2254 of Title 28, United States Code:(c) Appointment of counsel; time for hearing. If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g) and the hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation. These rules do not limit the appointment of counsel under 18 U.S.C. § 3006A at any stage of the proceeding if the interest of justice so requires.

THEREFORE, IT IS ORDERED as follows:

1. That the Recommendation of United States Magistrate Judge [#36], filed October 24, 2005, is APPROVED AND ADOPTED as an order of this court; and

2. That the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [#3], filed July 26, 2004, IS DENIED on the merits.