Kinney v. Diggins et al

Filing 4

ORDER to File Pre-Answer Response, by Magistrate Judge Gordon P. Gallagher on 12/02/2014. (slibi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03231-GPG
ANTHONY T. KINNEY,
Applicant,
v.
D. DIGGINS, Sheriff, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

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 November 26, 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. Respondents
are 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 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 Respondents do not intend to raise
either of these affirmative defenses, Respondents must notify the Court of that decision
in the Pre-Answer Response. Respondents may not file a dispositive motion as the
Pre-Answer Response, or an Answer, or otherwise address the merits of the claims in
response to this Order.
In support of the Pre-Answer Response, Respondents 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 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 is
ORDERED that within twenty-one (21) days from the date of this Order
Respondents 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 Respondents do not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondents
must notify the Court of that decision in the Pre-Answer Response.
DATED December 2, 2014, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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