Romero v. Ploughe et al

Filing 3

ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 3/21/12. (lsw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00686-BNB

EUGENE ROMERO,
Applicant,
v.
PAMELA PLOUGHE, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant Eugene Romero is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Colorado Territorial
Correctional Facility in Cañon City, Colorado. Mr. Romero, acting pro se, has filed an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254.
As part of the preliminary consideration of the Application in this case and
pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has
determined that a limited Preliminary Response is appropriate. First, it appears that the
Fremont District Court reviewed Applicant’s claims as a challenge to the execution of
Mr. Romero’s sentence. See Application at 23-25. If Mr. Romero is challenging the
execution of his sentence his claims more properly are raised in a 28 U.S.C. § 2241
action. Because it is not clear whether the action is a challenge to the validity of Mr.
Romero’s conviction and sentence, which is addressed in a § 2254 action, or a
challenge to the execution of his sentence, which is addressed in a § 2241 action, the
Court will direct the Respondents to brief this issue.

Respondents also are directed pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts to address the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies as applies to either § 2254 actions or § 2241 actions. If Respondents do not
intend to raise either of these affirmative defenses, Respondents must notify the Court
of that decision in the Response. Respondents may not file a dispositive motion as a
Preliminary Response, or an Answer, or otherwise address the merits of the claims in
response to this Order.
In support of the Preliminary Response, Respondents should attach as exhibits
all relevant portions of the state court record, including but not limited to copies of all
documents demonstrating whether this action is filed in a timely manner and/or whether
Applicant has exhausted state court remedies.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the classification of this action and the one-year limitation
period under 28 U.S.C. § 2244(d) and/or the exhaustion of state court remedies.
Applicant also should include information relevant to equitable tolling, specifically as to
whether he has pursued his claims diligently and whether some extraordinary
circumstance prevented him from filing a timely habeas action in this Court as is
necessary in response to Respondents’ briefing regarding the classification of this
action. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondents shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
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FURTHER ORDERED that if Respondents do not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondents
must notify the Court of that decision in the Preliminary Response.
Dated: March 21, 2012
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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