Kinney v. Shaffer et al

Filing 34

ORDER To Respondents To File Supplement to 31 Preliminary Response to Amended Habeas Petition filed by Brandon Shaffer, by Magistrate Judge Gordon P. Gallagher on 01/14/15. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02828-GPG
ANTHONY T. KINNEY,
Applicant,
v.
BRANDON SHAFFER, Chairman of Colorado Parole Board,
E. DIGGINS, Denver Sheriff, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO
Respondents.

ORDER TO FILE SUPPLEMENT TO PRELIMINARY RESPONSE

As part of the preliminary consideration of the amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 17) in this action, the Court
ordered Respondents to file a Preliminary Response limited to addressing whether any
of Applicant’s claims are moot and the affirmative defenses of timeliness under 28
U.S.C. § 2244(d) and/or exhaustion of state court remedies. On December 4, 2014,
Respondents filed a Preliminary Response (ECF No. 31) that addresses exhaustion of
state court remedies. Respondents do not address in the Preliminary Response
whether Applicant’s claims are moot.
In the amended Application, Mr. Kinney claims that he was denied due process
and equal protection in connection with a February 2012 Colorado “Full Board” parole
board hearing and decision granting him “a marginal parole date” of September 30,
2013. As relief, he seeks a declaration that his parole start date is April 2012, instead
of September 30, 2013. In light of Applicant’s apparent release on parole in September

30, 2013, Respondents will be directed to file a supplement to the Preliminary
Response that addresses whether Applicant’s claims in the amended application are
moot.
The Court also directs Respondents to address Mr. Kinney’s claim that he is
alleging an abuse of discretion by the parole board, which is not subject to judicial
review in Colorado state courts, and thus, is not required to exhaust state court
remedies pursuant to Wildermuth v. Furlong, 147 F.3d 1234, 1235 n.1 (10th Cir. 1998).
Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order
Respondents shall file a supplement to the Preliminary Response that complies with this
Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the
supplement to the Preliminary Response Applicant may file a Reply to the
supplement, if he desires.
DATED January 14, 2015, at Denver, Colorado.
BY THE COURT:

s/Gordon P. Gallagher
United States Magistrate Judge

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