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AcKerman v. Zupon

United States District Court, D. Colorado

March 24, 2016

EDWIN MARK ACKERMAN, Applicant,
v.
WARDEN ZUPON, Applicant.

ORDER OF DISMISSAL AND TO SHOW CAUSE

Lewis T. Babcock, Senior Judge

Applicant Edwin Mark Ackerman has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, ECF No.1. Applicant also has filed a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. The Court granted Applicant's § 1915 motion on February 2, 2016.

The Court must construe the Application liberally because Applicant 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 cannot act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Application will be denied and the action dismissed. Applicant will be ordered to show cause why he should not be subject to filing restrictions.

In the Nature of the Case section of the Application, Applicant asserts that he was

convicted by a General Court Martial on July 7, 1995 and sentenced to a term of [t]wenty seven (27) years. Two (2) months later the State of Colorado convicted the Applicant to a term of [t]hirty-five (35) years to run consecutive to the Military's sentence, but the State of Colorado placed the Applicant in their custody whereby he is still being held. By a request of the State of Colorado the Military had placed a detainer upon the Applicant because he was to answer for the State charges against him. The Military has had primary jurisdiction since July 7, 1995, but they have since by refusing to acquire said jurisdiction have lost that jurisdiction by allowing the State of Colorado to take and retain jurisdiction since the release of the Applicant into their custody for their Court proceeding.

ECF No. 1 at 2.

In Claim One, Applicant asserts that pursuant to People v. Beecroft, 874 P.2d 1041, 1044 (Colo.App. May 16, 1994) (rehearing denied June 6, 1991), his detainer should be rescinded, because "[a] person who is confined for an offense prior to imposition of sentence for said offense is entitled to credit against the term of his sentence for the entire period of such confinement. At the time of sentencing the court shall make a finding of the amount of presentence confinement to which the offender is entitled. ..." ECF No. 1 at 4. Also, in support of this claim, Applicant sets forth the provisions of § 4105 and § 3185, apparently from the United States Code, which state the provisions for calculating presentence confinement. Id.

In Claims Two and Three, Applicant asserts that the State of Colorado has been using the detainer to keep Applicant from progressing to a lower custody level and from being eligible for parole. Id. at 5. Finally, in Claim Four, Applicant contends that he is entitled to good time credits pursuant to the Uniform Code of Military Justice, which if calculated at ten days per month would equate to time served and his military sentence would be discharged. Id. at 6.

In the dismissal order in Ackerman v. Zupan, etal., No. 14-cv-03168-LTB (D. Colo. Feb. 2, 2015), this Court found as follows.

In the Order to Show Cause, Magistrate Judge Gallagher noted the background of Applicant's criminal and civil proceedings as they may relate to the detainer issue. Magistrate Judge Gallagher stated as follows:

In 1995, Applicant pled guilty in court-martial proceedings to rape and larceny in violation of Articles 120 and 121 of the Uniform Code of Military Justice, see 10 U.S.C.§§ 920, 921, and was sentenced, in part, to life imprisonment. See Ackerman v. Davis, et al. No. 13-cv-03487-RM, ECF No. 17-2 (D. Colo. July 7, 2014). On September 19, 1995, the Department of the Army entered a General Court-Martial Order, which provided that the court-martial sentence of confinement beyond twenty-seven years was suspended. Id. The General Court-Martial Order further provided that the sentence of confinement is "postponed" and will not begin until Applicant "has been permanently released to the armed forces." Id. The confinement was postponed so that Applicant could be prosecuted by the State of Colorado in separate criminal proceedings. Id., ECF No. 17-3 at 2. On September 29, 1995, Applicant pled guilty to second-degree kidnapping and was sentenced in Case No. 94cr3662 in El Paso County, Colorado, to thirty-five years' imprisonment in the DOC. Id., ECF No. 1 at 2; ECF No. 17-1. Applicant has a mandatory release date of April 21, 2026, in his State of Colorado conviction. Id., ECF No. 17-1.
On October 26, 1995, the Army lodged a detainer with the DOC, requesting notification by the DOC to either the Fort Carson Regional Corrections Facility, the U.S. Army Personnel Control Facility, or the U.S. Disciplinary Barracks before releasing Applicant from civilian confinement so that he could be returned to military jurisdiction. Id., ECF No. 17-3 at 2.
Applicant filed a § 2241 application in this Court, see Ackerman, No. 13-cv-03487-RM (noted above), and raised three claims that challenge the Army's detainer. The court in Case No. 13-cv-03487-RM found both the detainer and deprivation of parole due to the detainer lawful and the sentencing arrangement between the Army and the State of Colorado a matter of comity, which does not violate constitutional law. Ackerman, No. 13-cv-03487-RM, ECF No. 20 at 4-5 and 7-8. The § 2241 application was dismissed on the merits with prejudice. Id. at 7.
In this action, Applicant raises four claims regarding the Army's detainer. First, Applicant contends that, even though the State sentence is consecutive, because he is held in the State's custody the military sentence is concurrent to the State sentence and the detainer should be rescinded. Second, Applicant asserts he should be released with a certificate of discharge because he has served his military sentence. Third, Applicant contends that, under "858. Art. 58 Execution of Sentence, " because he can be confined in any prison to serve his military sentence, the time he is incarcerated in the State prison should be counted toward his military sentence. ...

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