Anderson v. Miller et al
ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 2/21/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00453-BNB
MICHAEL MILLER, Warden, and
TOM CLEMENTS, Director of Corrections for the C.D.O.C.,
ORDER TO FILE PRELIMINARY RESPONSE
As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) filed on February 20, 2013, 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. Respondents are
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. If Respondents do not intend to raise either of these affirmative defenses,
Respondents must notify the Court of that decision in the Preliminary 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 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. § 2241 action in this Court. Accordingly, it is
ORDERED that within twenty-one (21) 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 (21) days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
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 February 21, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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