Keyes v. Miller et al

Filing 15

ORDER To Supplement 14 Pre-Answer Response, filed by Michael Miller, Attorney General of the State of Colorado, by Magistrate Judge Boyd N. Boland on 07/10/12. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01058-BNB
REGGIE N. KEYES,
Applicant,
v.
MICHAEL MILLER, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO SUPPLEMENT PRE-ANSWER RESPONSE

Applicant, Reggie N. Keyes, is a prisoner in the custody of the Colorado
Department of Corrections and is currently incarcerated at the Crowley County
Correctional Facility in Olney Springs, Colorado. Mr. Keyes initiated this action by filing
a pro se Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on April
19, 2012.
As part of the preliminary consideration of the amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 in this case, the Court determined that a
limited pre-answer response was appropriate. Therefore, on May 7, 2012,
Respondents were directed, pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts and pursuant to Denson v. Abbott, 554 F.
Supp. 2d 1206 (D. Colo. 2008), to file a pre-answer 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). After receiving an extension of time,
Respondents submitted their pre-answer response on June 25, 2012. Applicant’s

deadline to file a Reply has not passed.
The Court has reviewed the Pre-Answer Response and has determined that a
supplement is required. Although Respondents were directed to submit with the PreAnswer Response any relevant state court documents to support the defense of failure
to exhaust state remedies, Respondents have not submitted all relevant portions of the
state court record. In particular, Respondents have not provided submitted a copy of
the Colo. Crim. P. Rule 35 motions that have been pending in the Bent County District
Court since May and June 2011.
Respondents argue that Mr. Keyes has not exhausted state court remedies for
claims 3(b), 3(f), 8 and 9, and has committed an anticipatory procedural default of
claims 1, 2, 3(c)-(e), 3(g)-(i), 4, 5, 6, 7 and 10. However, it is unclear whether any of
these claims are asserted in Applicant’s pending state court post-conviction proceeding.
The Court cannot determine definitively whether Mr. Keyes’ § 2254 Application should
be dismissed without prejudice as a mixed petition, or whether his claims are
procedurally defaulted, without reviewing the contents of the state post conviction
motions and any supporting briefs he filed in the Bent County District Court. Therefore,
Respondents will be directed to file a supplement to the Pre-Answer Response and to
provide the requested documentation as discussed in this order. Accordingly, it is
ORDERED that on or before July 24, 2012, Respondents shall file a
supplement to the pre-answer response that complies with this order.
DATED July 10, 2012, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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