Medina v. Colorado Department of Corrections
ORDER To File Preliminary Response by Respondents, by Magistrate Judge Boyd N. Boland on 12/11/13. (nmmsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03339-BNB
COLORADO DEPARTMENT OF CORRECTIONS, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Raymond Medina, currently is detained at the Denver County Jail in
Denver, Colorado. Mr. Medina, acting pro se, has filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 challenging an alleged parole hold.
As part of the preliminary consideration of the Application 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. Respondents are
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 Respondents do not intend to raise either of these affirmative defenses,
Respondents must notify the Court of that decision in the Preliminary Response.
Respondents 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, 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 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.
Finally, the Court notes that Applicant lists the Colorado Department of
Corrections as Respondent in the caption of the Application. The law is well-established
that the only proper respondent to a habeas corpus action is the 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; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995).
The Court has included for purposes of a response the Attorney General of the State of
Colorado. It the state attorney general is not an appropriate respondent, the state
attorney general should advise the Court. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondent Attorney General of the State of Colorado 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 Attorney General of the State of
Colorado does not intend to raise either of the affirmative defenses of timeliness or
exhaustion of state court remedies, he must notify the Court of that decision in the
Dated: December 11, 2013
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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