Robledo v. USA
Filing
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ORDER To File Pre-Answer Response, by Magistrate Judge Boyd N. Boland on 10/21/13. (nmmsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-02558-BNB
CRAIG ROBLEDO-VALDEZ,
Applicant,
v.
J. DAVIS, and
SUTHERS, Attorney General of the State of Colorado,
Respondents.
ORDER TO FILE PRE-ANSWER RESPONSE
Applicant has filed pro se on October 17, 2013, an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4). As part of the preliminary
consideration of the Application and pursuant to Denson v. Abbott, 554 F. Supp. 2d
1206 (D. Colo. 2008), 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 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, Respondents
must notify the Court of that decision in the Pre-Answer Response. Respondents may
not file a dispositive motion as the 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
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.
Finally, the court notes that Applicant improperly names the United States of
America as a Respondent in the caption of the Application. Because the law is wellestablished that the only proper respondent to a habeas corpus action is the habeas
applicant’s custodian, see 28 U.S.C. § 2242; Rules 2(a) and 1(b), Rules Governing
Section 2254 Cases in the United States District Courts; and Harris v. Champion, 51
F.3d 901, 906 (10th Cir. 1995), the United States of America is not listed as a
Respondent in the caption of this order and will not be required to file any response in
this action. Accordingly, it is
ORDERED that the only properly named Respondents for the purpose of service
are the Respondents listed in the caption of this order. It is
FURTHER ORDERED that within twenty-one (21) 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 (21) days of the filing of the
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Pre-Answer 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 Pre-Answer Response.
DATED October 21, 2013, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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