Kippes v. May
SECOND ORDER by Magistrate Judge Boyd N. Boland on 01/27/14, To File Preliminary Response. FURTHER ORDERED that the Court also serve the Attorney General of the State of Colorado. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03025-BNB
ADAM A. KIPPES,
WILLIAM J. MAY, Superintendent, CMHIP,
SECOND ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Adam A. Kippes, currently is confined at the Colorado Mental Health
Institute at Pueblo, Colorado. Mr. Kippes, acting pro se, filed a second amended
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 13)
challenging his pre-conviction confinement. As part of the preliminary consideration of
the second amended application in this case and pursuant to Keck v. Hartley, 550 F.
Supp. 2d 1272 (D. Colo. 2008), the Court determined that a limited Preliminary
Response is appropriate. Therefore, on December 27, 2013, the Court ordered
Respondent to file a preliminary response within twenty-one days. Respondent has
failed to do so within the time allowed.
Therefore, Respondent again 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
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. It is
FURTHER ORDERED that the Court also serve the Attorney General of the
State of Colorado. It is
FURTHER ORDERED that Respondent and the Attorney General of the State of
Colorado inform the Court within twenty-one days from the date of this Order if the
appropriate parties are being served.
Dated: January 27, 2014
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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