Carbajal v. Lynn et al
ORDER to File Pre-Answer Response, by Magistrate Judge Boyd N. Boland on 10/29/2014. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02880-BNB
RANDY LYNN, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO FILE PRE-ANSWER RESPONSE
As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 1) filed on October 22, 2014, in this
action and pursuant to Denson v. Abbott, 554 F. Supp. 2d 1206 (D. Colo. 2008), the
Court has determined that a limited Pre-Answer 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 Pre-Answer Response limited to addressing whether
Applicant is in custody for the purposes of the conviction he is challenging as well as 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 Respondent does not intend to raise
either of these affirmative defenses, Respondent must notify the Court of that decision
in the Pre-Answer Response. Respondent may not file a dispositive motion as the PreAnswer Response, or an Answer, or otherwise address the merits of the claims in
response to this Order.
In support of the Pre-Answer 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 Pre-Answer Response and provide any information
that might be relevant to his current custody as well as 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. § 2254 action in this Court. Accordingly, it
ORDERED that within twenty-one (21) days from the date of this Order
Respondent shall file a Pre-Answer Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the
Pre-Answer 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 Pre-Answer Response.
DATED October 29, 2014, at Denver, Colorado.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge
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