Lynch v. Suthers
Filing
13
ORDER to File Pre-Answer Response, by Magistrate Judge Gordon P. Gallagher on 4/28/15. (morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00243-GPG
JESSE LYNCH,
Applicant,
v.
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondent.
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. 5) filed 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 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 PreAnswer Response. Respondent 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, 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 the one-year limitation period under 28 U.S.C. § 2244(d)
and/or the exhaustion of state court remedies. Applicant should include any 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, and any information relevant to overcoming
a procedural default, such as cause and prejudice or the existence of a fundamental
miscarriage of justice. Accordingly, it is
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 April 28, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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