Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:04-cv-01072-ZLW-BNB

Document 110

Filed 05/09/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Magistrate Judge Boyd N. Boland Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and KEN SALAZAR, The Attorney General of the State of Colorado, Respondents.

MOTION TO WITHDRAW CLAIM II OF APPLICANT'S WRIT OF HABEAS CORPUS PETITION CONSISTENT WITH THE REPORT AND RECOMMENDATION ISSUED BY THE MAGISTRATE JUDGE

COMES NOW John E. Lopez, Applicant in the above-styled action and hereinafter referred to as "Applicant," by and through undersigned counsel, and files his Motion to Withdraw Claim II of Applicant's Writ of Habeas Corpus Petition Consistent with the Report and Recommendation Issued by the Magistrate Judge. As grounds therefore, the Applicant would show the following: 1. Currently pending in Applicant's Writ of Habeas Corpus Petition are two issues: CLAIM I. The statements of John Lopez, given as a result of five days of interrogation and coercion by Sergeant Joe Dougherty and his Agent Deborah Lopez, were obtained in violation of Lopez's Fifth and Fourteenth Amendment Rights of the United States Constitution and are therefore involuntary and should have been suppressed; and, CLAIM II. The Applicant, has obtained new reliable evidence, that demonstrates his innocence and such evidence establishes more likely than not, that no reasonable juror

Case 1:04-cv-01072-ZLW-BNB

Document 110

Filed 05/09/2008

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would have found the Applicant guilty beyond a reasonable doubt. A failure to consider such evidence will result in a violation of the Applicant's substantive and procedural due process rights pursuant to the Fifth and Fourteenth Amendments of the United States Constitution. See generally, Schlup v. Delo, 513 U.S. 298 (1995). 2. Magistrate Boland has recommended that the Applicant be permitted to withdraw Claim Two "in order to avoid dismissal of the entire Application" in his Report and Recommendation issued on May 5, 2008. 3. Applicant and undersigned counsel have reviewed the Court order and in order to avoid dismissal of the entire Application, Applicant agrees that Claim Two should be withdrawn in order to permit a review of Claim One, the exhausted claim previously presented by the Applicant. 4. Applicant does not wish for the entire petition as is currently pending before the Court to impair his ability to obtain federal relief and thus he has agreed to withdraw Claim Two. See generally, Rhines v. Weber, 544 U.S. 269, 278 (2005).

WHEREFORE, the Applicant respectfully prays that this Court permit the Applicant to Withdraw Claim II of his Writ of Habeas Corpus Petition Consistent with the Magistrate's Report and Recommendation.

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Case 1:04-cv-01072-ZLW-BNB

Document 110

Filed 05/09/2008

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DATED this 9 day of May, 2008

th

Respectfully submitted,

s/Robert G. Levitt_____ Robert G. Levitt, Esq. Counsel for Applicant 600 17th Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000 E-mail: [email protected]

CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on this 9th day of May, 2008, I electronically filed the foregoing MOTION TO WITHDRAW CLAIM II OF APPLICANT'S WRIT OF HABEAS CORPUS PETITION CONSISTENT WITH THE MAGISTRATE'S REPORT AND RECOMMENDATION with the Clerk of the Court using the ECF system which will send notification of such filing to the following e-mail address: [email protected]

s/Robert G. Levitt Robert G. Levitt, Esq. Counsel for Applicant 600 17th Street Suite 2800 South Denver, Colorado 80202 (303) 377-9000 [email protected]

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