Mandrell v. Raemisch et al

Filing 16

SECOND ORDER to File Preliminary Response, by Magistrate Judge Gordon P. Gallagher on 1/23/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-03064-GPG
PHILLIP MANDRELL,
Applicant,
v.
RICK RAEMISCH, Executive Director Colo. Dep’t of Corrections,
LAS ANIMAS COUNTY COMBINED COURTS, and
JAMES FAULK, Warden, Sterling Correctional Facility,
Respondents.

SECOND ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Phillip S. Mandrell, is in the custody of the Colorado Department of
Corrections at the correctional facility in Sterling, Colorado. Mr. Mandrell has filed pro
se an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. He has
paid the $5.00 filing fee.
On December 22, 2014, the Court entered an Order to File Preliminary
Response directed to the Respondent Warden. The Order instructed Respondent to
file a Preliminary Response, within 21days, limited to addressing the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies under Montez v. McKinna, 208 F.3d 862, 866 (10th Cir. 2000). Respondent
was further instructed to attach as exhibits to the preliminary response, 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.

Respondent Warden has not filed a Preliminary Response to date. Respondent
will be afforded a final opportunity to file his preliminary response in compliance with the
December 22 Order. Accordingly, it is
ORDERED that within 14 days from the date of this Order Respondent
Warden shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within 21 days of the filing of the Preliminary
Response Applicant may file a Reply, if he desires. In the Reply, Application may
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. It is
FURTHER ORDERED that if Respondent Warden 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 January 23, 2015, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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