Brown v. Executive Director of Colorado Dept. of Corrections
ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 12/02/2013. (skl)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03254-BNB
JOLEY B. BROWN,
EXECUTIVE DIRECTOR OF COLORADO DEPARTMENT OF CORRECTIONS,
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Joley B. Brown, is currently in the custody of the Colorado Department
of Corrections and is incarcerated at the Denver Reception and Diagnostic Center. Mr.
Brown has filed pro se an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241. He has paid the $5.00 filing fee.
As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 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 defense of exhaustion of state court
and/or administrative remedies. See Montez v. McKinna, 208 F.3d 862, 866 (10th Cir.
2000); Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). If Respondent does not
intend to raise the affirmative defense, 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 or administrative record, including but not limited to
copies of all documents demonstrating whether Applicant has exhausted state court
and/or administrative remedies.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the exhaustion of state court and/or administrative remedies.
Accordingly, it is
ORDERED that within twenty-one (21) 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 (21) 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 the affirmative
defense of exhaustion of state court and/or administrative remedies, Respondent must
notify the Court of that decision in the Preliminary Response.
Dated: December 2, 2013
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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