Smith v. Oliver
ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 4/02/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00452-BNB
HORATIO DEMARIOUS SMITH,
JOHN C. OLIVER,
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Horatio DeMarious Smith, is in the custody of the Federal Bureau of
Prisons and is incarcerated at the United States Penitentiary in Florence, Colorado. Mr.
Smith 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 administrative
remedies under 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 administrative record, including but not limited to copies of all
documents demonstrating whether Applicant has exhausted administrative remedies.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the exhaustion of 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 administrative remedies, Respondent must notify the Court of
that decision in the Preliminary Response.
Dated: April 2, 2014
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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