Martinez v. Attorney General of State of Colorado

Filing 7

ORDER to File Pre-Answer Response, by Magistrate Judge Boyd N. Boland on 10/16/2012. (skssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02493-BNB
DION MARTINEZ,
Applicant,
v.
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondent.

ORDER TO FILE PRE-ANSWER RESPONSE

Applicant is in the custody of the Colorado Department of Corrections and
currently is incarcerated at the Colorado State Penitentiary in Cañon City, Colorado.
Applicant, acting pro se, initiated this action by filing an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 challenging his criminal conviction in state
criminal case no. 05CR2245.
As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 in this case, the Court has determined that a
limited Pre-Answer Response is appropriate. Respondent is directed pursuant to Rule
4 of the Rules Governing Section 2254 Cases in the United States District Courts and 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). If
Respondent does not intend to raise either of these affirmative defenses, he must notify
the Court of that decision in the Pre-Answer Response. Respondent may not file a
dispositive motion as his Pre-Answer Response, or an Answer, or otherwise address

the merits of the claims in response to this Order.
In support of the Pre-Answer 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 may reply to the Pre-Answer 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. 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. § 2254 action in this Court. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondent shall file a Pre-Answer Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the PreAnswer Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, he must notify
the Court of that decision in the Pre-Answer Response.
Dated: October 16, 2012
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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