Cooley v. Timme
Filing
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ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 6/01/2012. (skssl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00987-BNB
RUSSELL COOLEY,
Applicant,
v.
RAE TIMME (Warden),
Respondent.
ORDER TO FILE PRELIMINARY RESPONSE
As part of the preliminary consideration of the amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed on May 7, 2012, 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.
Because Applicant appeared to be challenging the computation of his federal
sentence, see ECF No. 1, attachment 1 at 1, the Court originally ordered that the United
States Attorney be served. See ECF Nos. 9 and 10. However, on May 31, 2012, the
United States Attorney filed a letter (ECF No. 12) informing the Court that the Office of
the United States Attorney for the District of Colorado would not enter an appearance in
this case because Applicant is a state and not a federal prisoner, no claims are asserted
against a federal agency or employee, and Applicant’s custodian – the named
Respondent – is warden of the Colorado Territorial Correctional Facility in Cañon City.
Therefore, Respondent is directed pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts to file a Preliminary Response
limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d)
and/or exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). If
Respondent does not intend to raise either of these affirmative defenses, Respondent
must notify the Court of that decision in the Preliminary Response. Respondent 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, Respondent 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 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 28 U.S.C. § 2241 action in this Court.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the one-year limitation period under 28 U.S.C. § 2244(d)
and/or the exhaustion of state court remedies.
Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order
Respondent shall file a Preliminary Response that complies with this Order. It is
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
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FURTHER ORDERED that if Respondent does not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondent
must notify the Court of that decision in the Preliminary Response.
Dated: June 1, 2012
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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