Carlson v. Timme, Rae

Filing 12

Second ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 6/07/2012. (skssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 12-cv-00912-BNB
DAVID G. CARLSON,
Applicant,
v.
RAE TIMME,
Respondent.

SECOND ORDER TO FILE PRELIMINARY RESPONSE

On April 30, 2012, Applicant David G. Carlson filed an Amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Applicant is currently in the
custody of the Colorado Department of Corrections. However, in the Amended
Application, he challenges the computation of the federal sentence that was imposed on
him in Case No. 04-cr-00482. Specifically, he asserts that he is entitled to time
computation credits on his federal sentence pursuant to Willis v. United States, 438
F.2d 923 (C.A. GA 1971). He argues that he should receive credit towards his federal
sentence from the date of his arrest, June 11, 2009, when a federal no hold bond was
placed on him, until December 10, 2009, the date of his sentencing in the state court
criminal action.
On May 2, 2012, the Court directed Respondent Warden Rae Timme to file a
limited preliminary response pursuant to Keck v. Hartley, 550 F.Supp.2d 1272 (D. Colo.
Apr. 17, 2008), and address the affirmative defense of timeliness and/or exhaustion of

state court remedies. On May 23, 2012, Respondent filed a preliminary response and
indicated that Warden Rae Time is not the proper respondent in this case because
Applicant is challenging the calculation of his federal sentence. Instead, Warden Timme
asserted that federal prison administrators should be directed to respond to the issue of
exhaustion of administrative remedies.
Therefore, the Court will direct the United States Attorney to file a preliminary
response to the Amended Application pursuant to Redmon v. Wiley, 550 F. Supp. 2d
1275 (D. Colo. 2008). Pursuant to Rule 4 of the Rules Governing Section 2254 Cases
in the United States District Courts, the Preliminary Response should be limited to
addressing the affirmative defense of exhaustion of administrative remedies. The
United States Attorney should also address whether Applicant, who is currently in state
court custody, is required to exhaust federal remedies, and the manner in which
Applicant exhausts those remedies. If the United States Attorney does not intend to
raise this affirmative defense, the United States Attorney must notify the Court of that
decision in the Preliminary Response.
In support of the Preliminary Response, the United States Attorney should attach
as exhibits copies of any administrative grievances Applicant has filed raising the issues
asserted in the Application, as well as any responses to those grievances. Applicant
may reply to the Preliminary Response and provide any information that might be
relevant to his efforts to exhaust administrative remedies. Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order the
United States Attorney shall file a Preliminary Response that complies with this Order.
It is
2

FURTHER ORDERED that within twenty-one (21) days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if the United States Attorney does not intend to raise
the affirmative defense of exhaustion of administrative remedies, the United States
Attorney must notify the Court of that decision in the Preliminary Response. It is
FURTHER ORDERED that the only proper Respondent for purposes of
service is the United States Attorney.
Dated: June 7, 2012
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

3