Garcia v. Trani et al
ORDER To Respondents To File Pre-Answer Response, by Magistrate Judge Boyd N. Boland on 07/08/14. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-00918-BNB
TRAVIS TRANI, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO FILE PRE-ANSWER RESPONSE
Applicant, Michael Garcia, has attempted three times to submit a properly
completed Court-approved form used in filing 28 U.S.C. § 2254 actions. His last
attempt is deficient because he submitted his claim and other pertinent information on a
form that normally is used in filing actions pursuant to 28 U.S.C. § 2255. Nonetheless,
the information provided appears sufficient for Respondents to provide a Pre-Answer
Response regarding the one claim that Applicant has asserted.
Respondents, therefore, are directed pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts and to Denson v. Abbott, 554
F.Supp. 2d 1206 (D. Colo. 2008), to file a Pre-Answer Response limited to addressing
the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of
state court remedies under 28 U.S.C. § 2254(b)(1)(A). If Respondents do not intend to
raise either of these affirmative defenses, they must notify the Court of that decision in
the Pre-Answer Response. Respondents may not file a dispositive motion as their PreAnswer Response, or an Answer, or otherwise address the merits of the claims in
response to this Order.
In support of the Pre-Answer 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 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 within twenty-one days from the date of this Order
Respondents shall file a Pre-Answer Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the PreAnswer Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondents do not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, they must
notify the Court of that decision in the Pre-Answer Response.
Dated: July 8, 2014
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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