Opinion
Civil Action No. 13-cv-02006-BNB
2013-10-23
MICHAEL TERRELL WHEELER, Applicant, v. JAMES FALK, Warden, and JOHN W. SUTHERS, the Attorney General of the State of Colorado, Respondents.
ORDER OVERRULING OBJECTION
This matter is before the Court on the document titled "Objection to Court Order for Pre-Answer Response" (ECF No. 11) filed pro se on October 21, 2013, by Applicant, Michael Terrell Wheeler. Mr. Wheeler is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the correctional facility in Sterling, Colorado.
In the objection, Mr. Wheeler objects to Magistrate Judge Boyd N. Boland's order of October 8, 2013 (ECF No. 8), directing Respondents for a second time to file a pre-answer response within twenty-one days. Respondents failed to respond to the first order entered on September 3, 2013 (ECF No. 6). Mr. Wheeler argues that Respondents' failure to respond to the first order for a pre-answer response constitutes a deliberate waiver of the timeliness and failure-to-exhaust defenses, citing Wood v. Milyard, 132 S. Ct. 1826, 1830 (2012), in support.
The Court must construe liberally the October 21 objection because Mr. Wheeler is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. 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 October 8 order is not clearly erroneous or contrary to law. In addition, Wood reversed a court's sua sponte consideration of the timeliness of a state prisoner's federal habeas petition after the state had deliberately and intelligently waived its timeliness defense in the filed pre-answer response. Wood is inapplicable in the instant action, in which the pre-answer response has yet to be filed. Therefore, the objection will be overruled.
Accordingly, it is
ORDERED that the document titled "Objection to Court Order for Pre-Answer Response" (ECF No. 11) filed pro se on October 21, 2013, by Applicant, Michael Terrell Wheeler, and which the Court has construed liberally as an objection pursuant to 28 U.S.C. § 636(b)(1)(A), is overruled.
DATED at Denver, Colorado, this 23rd day of October, 2013.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court