Thornton v. Daniels

Filing 16

ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 8/22/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00960-BNB
HAROLD JEROME THORNTON,
Applicant,
v.
L. DANIELS, Warden,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Harold Jerome Thornton, is currently in the custody of the Federal
Bureau of Prisons and is incarcerated currently at the United States Penitentiary in
Jonesville, Virginia. At the time he initiated this action, Mr. Thornton was incarcerated in
the District of Colorado. Mr. Thornton has filed pro se an Amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. # 10]. He has been granted
leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
As part of the preliminary consideration of the Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 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 for claims one and two only. 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
defense of exhaustion of administrative remedies under Garza v. Davis, 596 F.3d 1198,
1203 (10th Cir. 2010). If Respondent does not intend to raise the affirmative defense,

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 administrative record, including but not limited to copies of all
documents demonstrating whether Applicant has exhausted administrative remedies.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the exhaustion of administrative 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
FURTHER ORDERED that if Respondent does not intend to raise the affirmative
defense of exhaustion of administrative remedies, Respondent must notify the Court of
that decision in the Preliminary Response.
Dated: August 22, 2013
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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