Simmons v. Trani et al

Filing 29

ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 9/11/2013. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01273-BNB

LEO SIMMONS,
Applicant,
v.
TRAVIS TRANI, WARDEN, DRDC,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Leo Simmons, is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Fremont Correctional n Cañon City,
Colorado. Mr. Simmons, acting pro se, has filed an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 challenging both the execution of his sentence
and the conditions of his confinement.
Mr. Simmons is subject to filing restrictions under 28 U.S.C. § 1915(g). See
Simmons v. Clements, et al., No. 12-cv-03366-LTB, ECF No. 11 (D. Colo. June 16,
2013). By asserting the conditions of confinement claims in this action, Applicant is
attempting to circumvent his filing restrictions. If Applicant initiates any subsequent
§ 2241 actions in this Court that are attempts to circumvent his filing restrictions the
Court will consider monetary sanctions against him.
The only claim the Court will address in this action is Applicant’s claim that he is
being held without a mittimus or a warrant of commitment.

As part of the preliminary consideration of the Application 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. 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
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies. If Respondent does not intend to raise either of these affirmative defenses,
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 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 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 days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
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FURTHER ORDERED that if Respondent does not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondent
must notify the Court of that decision in the Preliminary Response.
Dated: September 11, 2013
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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