Waynewood v. Colorado Department of Corrections

Filing 13

ORDER to Draw. This case shall be drawn to a district judge and to a magistrate judge, by Magistrate Judge Boyd N. Boland on 1/02/2014. (skl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02561-BNB

DE’ON WAYNEWOOD,
Applicant,
v.
COLORADO DEPARTMENT OF CORRECTIONS, ADULT PAROLE,
Respondent.

ORDER TO DRAW

Applicant, De’on Waynewood, currently resides in Aurora, Colorado, and is
subject to parole. Applicant, acting pro se, initiated this action by filing an Application
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 that challenges the execution
of this sentence. In an order filed on September 26, 2013, Magistrate Judge Boyd N.
Boland directed Respondent to file a Preliminary Response limited to addressing the
affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state
court remedies under 28 U.S.C. § 2254(b)(1)(A). On October 28, 2013, Respondent
filed a Preliminary Response. Applicant filed a Reply on November 15, 2013.
Respondent asserts that the Application should be denied because Applicant has
failed to exhaust state remedies. Respondent contends that because Applicant failed to
pay the filing fee and to provide an original signature on the petition for writ of habeas
corpus that he filed with the Colorado Supreme Court (CSC) on March 12, 2013, the

petition is deficient and no final decision has been entered. Applicant asserts in his
Reply that he complied with the CSC’s order to cure and attached a copy of the
deficiency notice from the CSC that he received subsequent to filing the March 12, 2013
petition. Applicant also submitted a copy of the money order receipt showing he sent
the filing fee to the CSC, and stated in the Reply that he signed and returned a copy of
the petition to the CSC as required by the deficiency notice.
Furthermore, the CSC’s order dated March 20, 2013, see ECF No. 11-4, and
ECF No. 12 at 8, did not dismiss the petition for failure to cure deficiencies. The order
states that upon consideration of the petition and being sufficiently advised in the
premises the petition is denied. Id. Therefore, based on Applicant’s Reply and the
CSC’s March 20 order, Applicant appears to have exhausted his remedies.
Accordingly, it is ordered that the application and action shall be drawn to a district
judge and to a magistrate judge.
DATED January 2, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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