Sines v. Caley

Filing 22

ORDER by Magistrate Judge Boyd N. Boland on 08/02/13, To File a Preliminary Response, and ORDER DENYING as unnecessary and/or moot 18 Motion for Ruling.(nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01230-BNB
BEAUX GORDON SINES,
Applicant,
v.
ED CALEY, Warden, Trinidad Correctional Facility,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

As part of the preliminary consideration of the second and final amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 21)
filed on July 29, 2013, in this case and pursuant to Redmon v. Wiley, 550 F. Supp. 2d
1275 (D. Colo. 2008), the Court has determined that a limited Preliminary Response is
appropriate.
The warden of the Trinidad Correctional Facility properly is named as
Respondent because he is Applicant’s custodian. See 28 U.S.C. §§ 2242, 2243; Rules
2(a) and 1(b) of the Rules Governing Habeas Corpus Cases Under Section 2254
(Section 2254 Rules); Braden v. 30th Judicial Circuit Ct. of Ky., 410 U.S. 484, 494-95
(1973) Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). However, Respondent
will not be directed to file a Preliminary Response at this time.
Instead, the United States Attorney will be 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. If the United States Attorney does not intend to raise this
affirmative defense, the United States Attorney must notify the Court of that decision in
the Preliminary Response. The United States Attorney 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, the United States Attorney should attach
as exhibits copies of any administrative grievances Applicant has filed raising the issues
asserted in the Application, as well as any responses to those grievances. Applicant
may reply to the Preliminary Response and provide any information that might be
relevant to his efforts to exhaust administrative remedies.
Accordingly, it is
ORDERED that Respondent will not be directed to filed a Preliminary Response
at this time. It is
FURTHER ORDERED that within twenty-one (21) days from the date of this
Order the United States Attorney 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 the United States Attorney does not intend to raise
the affirmative defense of exhaustion of administrative remedies, the United States
Attorney must notify the Court of that decision in the Preliminary Response. It is
FURTHER ORDERED that the motion titled “Motion for Ruling on the Pending 28
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USC 2241 Application and All Other Motions, Amendents [sic], Addendum’s [sic] and
Request Filed Alternately Motion to Order Respondent to Show Cause Why Writ Should
Not Be Granted” (ECF No. 18) filed on July 10, 2013, is denied as unnecessary and/or
moot.
DATED August 2, 2013, at Denver, Colorado.
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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