Marty v. Cozza-Rhodes
ORDER to File Preliminary Response; Applicant's Motion for Oral Argument 21 is denied as premature, by Magistrate Judge Boyd N. Boland on 8/5/14.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01672-BNB
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Randal Marty, is a prisoner in the custody of the Federal Bureau of
Prisons (BOP), who currently is incarcerated at the Federal Correctional Institution in
Florence, Colorado. Pursuant to the July 9, 2014 Order, Applicant has filed pro se an
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Applicant is
challenging the BOP’s calculation of his sentence. He specifically asserts that had the
BOP credited him with the presentence confinement time he is entitled to he would have
been released on or about March 9, 2014.
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. 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 with respect to the execution of his
sentence. If Respondent does not intend to raise this 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.
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 the affirmative
defense of exhaustion of administrative remedies, Respondent must notify the Court of
that decision in the Preliminary Response. It is
FURTHER ORDERED that Applicant’s Motion for Oral Argument, ECF No. 21, is
denied as premature.
Dated: August 5, 2014
BY THE COURT:
s/Boyd N. Boland
United States Magistrate Judge
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