Dominguez v. Archuleta et al

Filing 5

ORDER To File Pre-Answer Response, within 21 days from the date of this Order, by Magistrate Judge Boyd N. Boland on 06/18/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-01576-BNB
FRANCISCO DOMINGUEZ,
Applicant,
v.
LOU ARCHULETTA, Warden, FCF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 22541 in this case, the Court has determined that a
limited Pre-Answer Response is appropriate. Respondents are 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
Respondents do not intend to raise either of these affirmative defenses, they must notify
the Court of that decision in the Pre-Answer Response. Respondents may not file a
dispositive motion as their 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, Respondents should attach as exhibits

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The Court notes that Applicant has filed two previous 28 U.S.C. § 2254 cases, including Case
No. 06-cv-00112-ZLW that was dismissed for failure to cure, and Case No. 01-cv-00474-ZLW that was
dismissed for failure to exhaust state court remedies.

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
Respondents 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 Respondents do not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, they must
notify the Court of that decision in the Pre-Answer Response.
Dated: June 18, 2013
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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