Anderson et al v. Lengerich

Filing 8

ORDER Directing Respondents to File Amended Preliminary Response, by Magistrate Judge Boyd N. Boland on 10/9/14. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02563-BNB
ANTHONY ANDERSON,
Applicant,
v.
RICK RAEMISCH, Executive Director of CDOC,
WARDEN LENGERICH, Buena Vista Correctional Facility,
Respondents.

ORDER DIRECTING RESPONDENTS TO FILE
AMENDED PRELIMINARY RESPONSE

Applicant, Anthony Anderson, is a prisoner in the custody of the Colorado
Department of Corrections at the correctional facility in Buena Vista, Colorado. Mr.
Anderson, acting pro se, filed an Application for a Writ of Habeas Corpus Pursuant to 28
U.S.C. § 2241 (ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3), together with a
certificate of the warden as to the amount of money currently on deposit in his inmate
trust fund account. The § 1915 motion (ECF No. 3), was granted.
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. Therefore, on September 17, 2014, Respondents were
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

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). See ECF No. 4. The September 17 order
informed Respondents that if they did not intend to raise either of these affirmative
defenses, they must notify the Court of that decision in the Preliminary Response. The
September 17 order directed Respondents not to file a dispositive motion as the
Preliminary Response, or an Answer, or otherwise address the merits of the claims.
Lastly, the September 17 order told Respondents that, in support of the
Preliminary Response, they 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.
The September 17 order allowed Applicant to 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
was directed to 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.
On October 8, 2014, Respondents submitted their Preliminary Response (ECF
No. 7) recommending that the Court dismiss this action for failure to exhaust state
remedies. In support of this argument, the October 8 response specifically notes that:
“Anderson could challenge the calculation and application of
time credits to his sentence in a civil action filed in the
Colorado courts pursuant to a Petition for a Writ of Habeas
Corpus and/or a Petition for Mandamus.”
ECF No. 7 at 3.

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Respondents contend that Applicant has failed to do so, citing to the Colorado
State Court Data Access database, but copies of the documents they examined to
make this determination have not been provided. Respondents also fail to provide any
law, case or otherwise, indicating that Applicant is required to file a petition for a writ of
habeas corpus and/or a petition for mandamus in state court in order to exhaust state
remedies.
Respondents will be directed to supplement the current record before the Court
by filing an amended Preliminary Response that provides this missing information and
stands on its own without reference to the October 8 Preliminary Response. Applicant
need not reply to the October 8 Preliminary Response because he will be given an
opportunity to respond to the amended Preliminary Response Respondents will be
directed to file.
Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondents shall file an amended Preliminary Response that complies with this Order.
It is
FURTHER ORDERED that within twenty-one days of the filing of the
amended Preliminary 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, Respondents

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must notify the Court of that decision in the amended Preliminary Response.
DATED October 9, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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