Ackerman v. Davis et al

Filing 6

ORDER To File Preliminary Response, by Magistrate Judge Boyd N. Boland on 12/26/13. (nmmsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13cv-03487-BNB
EDWIN MARK ACKERMAN,
Applicant,
v.
WARDEN DAVIS,
U.S. ARMY, and
UNITED STATES ATTORNEY FOR THE DISTRICT OF COLORADO,
Respondents.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Edwin Mark Ackerman, is a prisoner in the custody of the Colorado
Department of Corrections and currently is incarcerated at the correctional facility in
Buena Vista, Colorado. Mr. Ackerman, acting pro se, filed an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 challenging a detainer entered against
him by the United States Army.
First, the Court addresses the proper respondent in this action. Although Mr.
Ackerman properly has named his custodian as a Respondent, The United States
Attorney for the District of Colorado (U.S. Attorney) would best respond to Mr.
Ackerman’s claims regarding the detainer. See Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484 (1973) (applicant is not precluded from challenging a future
detainer). Therefore, the U. S. Attorney is named as respondent for the purpose of
responding. Warden Davis will be served for informational purposes only.
Next, 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. The U.S. Attorney 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 administrative remedies with respect to the detainer. If the
U.S. Attorney does not intend to raise this affirmative defense, he must notify the Court
of that decision in the Preliminary Response. The U.S. Attorney 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, the U.S. Attorney should attach as
exhibits all relevant portions of the administrative record, including but not limited to
copies of all documents demonstrating whether Applicant has exhausted administrative
remedies.
Mr. Ackerman may reply to the Preliminary Response and provide any
information that might be relevant to the exhaustion of remedies. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order the U.S.
Attorney 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 Mr. Ackerman may file a Reply, if he desires. It is
FURTHER ORDERED that if the U.S. Attorney does not intend to raise the
affirmative defenses of exhaustion of remedies, he must notify the Court of that decision
in the Preliminary Response.
Dated: December 26, 2013
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
2