Hovey v. People of the State of Colorado, et al.

Filing 9

ORDER To File Preliminary Response, by Magistrate Judge Boyd N. Boland on 7/15/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01543-BNB
JONATHAN WRAY HOVEY,
Applicant,
v.
PEOPLE OF THE STATE OF COLORADO, and
UNITED STATES OF AMERICA,
Respondents.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Jonathan Wray Hovey, currently is detained at the Larimer County
Detention Facility in Fort Collins, Colorado. Originally, Applicant filed a pleading titled,
“Writ of Habeas Corpus.” The Court reviewed the pleading, determined the filings were
deficient, and directed Applicant to file his claims on a Court-approved form and either
to pay the $5 filing fee or to submit a request to proceed pursuant to 28 U.S.C. § 1915.
Applicant filed his claims on a proper form and a request to proceed pursuant to
ss1915. The Court granted Applicant leave to proceed pursuant to § 1915. In the §
2241 Application form, Applicant is challenging a detainer that he alleges was entered
against him by the United States Postal Inspection and contends that he has been
detained without bond for the past four months.
First, the Court addresses the proper respondent in this action. The People of
Colorado and the United States are not proper respondents to this action. Applicant’s
custodian is a proper respondent in a 28 U.S.C. § 2241 action., The United States
Attorney for the District of Colorado (U.S. Attorney), however, would best respond to
Applicant’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 to this Order.
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 available 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 the available
remedies.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the exhaustion of remedies. Accordingly, it is
ORDERED that the U.S. Attorney is the only party to be served with this
Order. It is
FURTHER 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
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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 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: July 15, 2014
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge

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