Gordon v. Faulk et al

Filing 15

ORDER granting in part and denying in part 14 Motion for Leave and Directing Respondents to File Pre-Answer Response, by Magistrate Judge Craig B. Shaffer on 3/21/2014.(slibi, ) Modified on 3/21/2014 to edit the magistrate judge (slibi, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00371-BNB
LARRY GORDON,
Applicant,
v.
FRANCIS FAULK, Warden, Limon Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO JOHN SUTHERS,
Respondents.

ORDER GRANTING AND DENYING IN PART MOTION FOR LEAVE AND
DIRECTING RESPONDENTS TO FILE PRE-ANSWER RESPONSE

This matter is before the Court on the “Motion for Leave to File Motion to Dismiss
§ 2554 [sic] Application” (ECF No. 14) filed by Respondents on March 18, 2014. In the

motion for leave, Respondents request either leave to file a “Motion to Dismiss § 2254
Application as Untimely” (ECF No. 14, ex. 1) pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, or an extension of time of twenty-one days to file a pre-answer
response in response to the Court’s order of March 10, 2014. See ECF Nos. 14 at 4,
10. Because the Attorney General’s appellate file in Applicant’s state conviction has
been destroyed, Respondents also request leave to file the pre-answer response
without appellate briefs and opinions as attachments, which will cost $1.25 per page to
photocopy at the State Archives.
The “Motion for Leave to File Motion to Dismiss § 2554 [sic] Application” will be
granted in part and denied in part. To the extent Respondents seek to file the “Motion

to Dismiss § 2254 Application as Untimely” pursuant to Fed. R. Civ. P. 12(b)(6), the
motion for leave will be denied. To the extent Respondents seek an extension of
twenty-one days to file a pre-answer response to the Court’s order of March 10, 2014,
the motion for leave will be granted. Respondents’ request for leave to file the preanswer response without appellate briefs and opinions as attachments also will be
granted at this time. Depending on the pre-answer response filed, the Court still may
require Respondents to file the full record. Respondents will be directed to refile as
attachments to the pre-answer response the relevant attachments to the “Motion to
Dismiss § 2254 Application as Untimely” in a readable, 12-point font. See, e.g., ECF
No. 14, ex. 2 at 2-9.
Applicant may reply to the pre-answer 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. §
2254 action in this Court.
Accordingly, it is
ORDERED that the “Motion for Leave to File Motion to Dismiss § 2554 [sic]
Application” (ECF No. 14) is granted in part and denied in part. It is
FURTHER ORDERED that to the extent Respondents seek to file the “Motion to
Dismiss § 2254 Application as Untimely” (ECF No. 14, ex. 1) pursuant to Fed. R. Civ. P.
12(b)(6), the motion for leave is denied. It is
FURTHER ORDERED that to the extent Respondents seek an extension of
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twenty-one (21) days to file a pre-answer response to the Court’s order of March 10,
2014, the motion for leave is granted. It is
FURTHER ORDERED that Respondents’ request for leave to file the pre-answer
response without appellate briefs and opinions as attachments is granted at this time.
Depending on the pre-answer response filed, the Court still may require Respondents to
file the full record. It is
FURTHER ORDERED that Respondents are directed to refile as part of the preanswer response the relevant attachments to the “Motion to Dismiss § 2254 Application
as Untimely” in a readable, 12-point font. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the preanswer response Applicant may file a reply, if he desires.
DATED at Denver, Colorado, this 21st day of March, 2014.
BY THE COURT:

s/Craig B. Shaffer
United States Magistrate Judge

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