992 F2d 1222 Green v. W Nottingham

992 F.2d 1222

Clovis Carl GREEN, Jr., Petitioner-Appellant,
v.
Honorable Edward W. NOTTINGHAM; United States District
Court, District of Colorado, Respondents-Appellees.

No. 92-1265.

United States Court of Appeals, Tenth Circuit.

April 28, 1993.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before McKAY, Chief Judge, and SEYMOUR and KELLY, Circuit Judges.

ORDER AND JUDGMENT*

PER CURIAM.

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1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

This appeal is taken from the district court's order dismissing Mr. Green's Petition for Declaratory and Injunctive Relief by which Mr. Green sought an order directing the Honorable Edward W. Nottingham to rule on one of Mr. Green's other cases, No. 92-N-602, a petition for writ of habeas corpus. Mr. Green complained that the state had not responded in No. 92-N-602, thereby entitling him to relief. The habeas petition seeks to challenge the constitutionality of Colo.Rev.Stat. § 18-1-405(1), which requires trial of an accused within six months of the entry of a plea of not guilty.

3

At the time this action was filed, the habeas corpus petition had been pending five months. Contrary to Mr. Green's assertion, the state had filed a response. In addition, the magistrate judge had filed his recommendation.

4

Issuance of a writ of mandamus is largely within the discretion of the issuing court. Marathon Oil Co. v. Lujan, 937 F.2d 498, 500 (10th Cir.1991), citing Kerr v. United States Dist. Court, 426 U.S. 394, 403 (1976). Under the circumstances of this case, we cannot agree that the district court abused its discretion in denying the writ. Marathon Oil Co. v. Lujan, 937 F.2d at 500.

5

Mr. Green has also filed a mandamus petition in this case, seeking an order of this court directing Judge Nottingham to hear and decide No. 92-N-602. In addition, he has recently commenced an original proceeding in this court, Green v. Nottingham, No. 93-546, in which he challenges the district court's failure to rule in No. 92-N-602. We will address the mandamus application in No. 93-546.

6

The judgment of the United States District Court for the District of Colorado is AFFIRMED. The petition for writ of mandamus is DENIED.

7

The mandate shall issue forthwith.

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*

This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3

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