Mallett v. Samuels et al
ORDER Directing Plaintiff To Cure Deficiencies, by Magistrate Judge Boyd N. Boland on 09/19/14. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02498-BNB
ANTHONY DRAKE ORDUNO,
COLORADO DEPARTMENT OF CORRECTIONS/DIVISION OF ADULT PAROLE,
ORDER TO FILE PRELIMINARY RESPONSE
As part of the preliminary consideration of the second amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 9) filed on September
18, 2014, 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 defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of
state court remedies. If Respondent does not intend to raise either of these affirmative
defenses, 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 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 (21) 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 (21) 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 September 19, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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