Mackey v. Archuleta
ORDER to File Preliminary Response, by Magistrate Judge Boyd N. Boland on 7/07/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01662-BNB
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Waldo Mackey, is a prisoner in the custody of the Colorado
Department of Corrections who currently is incarcerated at the Fremont Correctional
Facility in Cañon City, Colorado. He has filed pro se an amended Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 5).
As part of the preliminary consideration of the Application for 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 determined that a limited Preliminary
Response is appropriate. Respondents are 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 Court’s jurisdiction to address Applicant’s
asserted § 2241 claim and 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, Respondents
must notify the Court of that decision in the Preliminary Response. Respondent may
not file a dispositive motion as the 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 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 Preliminary 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. § 2241 action in this Court.
Accordingly, it is
ORDERED that within twenty-one 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 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 either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondent
must notify the Court of that decision in the Preliminary Response.
Dated: July 7, 2014
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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