Jonathan N. Estes v. T.G. Werlich, Warden, M.D. Carvajal, Complex Warden, Dean...

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge William J. Martínez Civil Action No. 16-cv-0141-WJM-MEH JONATHAN N. ESTES, Petitioner, v. T.G. WERLICH, Warden, M.D. CARVAJAL, Complex Warden, DEAN WILLIAMS, Director of D.D.O.C., and PHILIP J. WEISER, Attorney General of the State of Colorado, Respondents.

ORDER ADOPTING JUNE 23, 2021 AND AUGUST 4, 2021 RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

This matter is before the Court on United States Magistrate Judge Michael E.

Hegarty’s: (1) June 23, 2021 Report and Recommendation (“Recommendation 1”) (ECF No. 157) that the Court grant in part Petitioner Jonathan N. Estes’s Motion for Voluntarly [sic] Dismissal of Claims Pending State Court Exhaustion and to Amend Claims Technically Exhausted and to Lift Stay (ECF No. 139), and defer ruling on the motions related to claim five pending reopening of the case; and (2) August 4, 2021 Report and Recommendation (ECF No. 167) (“Recommendation 2”) (jointly “Recommendations”) that the Court deny Petitioner’s Motion to Voluntarily Dismiss Entire Federal Habeas Proceeding Without Prejudice Under Rule 60(B)(6) (ECF No. 164).

The Recommendations are incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b). For the following reasons, the Recommendations are adopted in their entirety.

Recommendation 1 advised the parties that specific written objections were due within fourteen days after being served with a copy of the Recommendation. (ECF No. at 2.) Petitioner later filed a Motion to File Late Objections to Report and Recommendation. (ECF No. 162.) In Recommendation 2, Judge Hegarty granted the Motion to File Late Objections and permitted Petitioner to file written objections to Recommendation 1 within 14 days of receipt of the Order. (ECF No. 167 at 7.) As of the date of this Order, no objections to Recommendation 1 or Recommendation 2 have been received from any party.

The Court concludes that the Magistrate Judge’s analysis was thorough and sound, and that there is no clear error on the face of the record. See Fed. R. Civ. P. 72(b) advisory committee’s note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (“In the absence of timely objection, the district court may review a magistrate’s report under any standard it deems appropriate.”).

In accordance with the foregoing, the Court ORDERS as follows: 1. Recommendation 1 (ECF No. 157) is ADOPTED in its entirety; 2. Petitioner’s Motion for Voluntarly [sic] Dismissal of Claims Pending State Court Exhaustion and to Amend Claims Technically Exhausted and to Lift Stay (ECF No. 139) is GRANTED IN PART as follows: a. The Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 9) is REINSTATED, and Claims One through Four are DISMISSED without prejudice under Federal Rule of Civil Procedure 41(a)(2); and b. The Stay Order (ECF No. 132) is LIFTED, and this case is REOPENED; 3. Petitioner's Motion to Lift Stay to Amend Federal Habeas Based on Inordinate Delay/Denial of Access (ECF No. 144) is GRANTED IN PART to lift the stay; 4. A ruling on the Motion for Voluntarly [sic] Dismissal of Claims Pending State Court Exhaustion and to Amend Claims Technically Exhausted and to Lift Stay (ECF No. 139) and the Motion to Lift Stay to Amend Federal Habeas Based on Inordinate Delay/Denial of Access (ECF No. 144) regarding Petitioner’s fifth claim is DEFERRED pending reopening of the case; 5. Recommendation 2 (ECF No. 167) is ADOPTED in its entirety; 6. Petitioner's Motion to Voluntarily Dismiss Entire Federal Habeas Proceeding Without Prejudice Under Rule 60(B)(6) (ECF No. 164) is DENIED; and 7. Aruling on Petitioner's Motion to Withdraw Inordinate Delay Defense and Show Cause and Prejudice under Martinez v. Ryan (ECF No. 163) is DEFERRED pending reopening of this case.

Dated this 20" day of September, 2021.

BY, ae COURT: WilliamJ-Maytinez United States District Judge