Settle v. T. Cozza-Rhodes

Filing 10

ORDER to File Preliminary Response, by Magistrate Judge Gordon P. Gallagher on 4/3/15. (morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00464-GPG
JASON SETTLE,
Applicant,
v.
T. COZZA-RHODES, Warden USP Florence,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant Jason Settle is in the custody if the Federal Bureau of Prisons currently
is incarcerated at the United States Penitentiary in Florence, Colorado. Applicant
initiated this action by filing pro se an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2241 that challenges the failure by the BOP to apply presentence credit
against his sentence. Pursuant to Court order Applicant now has filed a properly signed
and dated Application. He also has paid the $5 filing fee.
As part of the preliminary consideration of the Application in this case and
pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has
determined that a limited Preliminary 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 Preliminary Response limited to addressing the affirmative
defense of exhaustion of administrative remedies with respect to the execution of his
sentence. If Respondent does not intend to raise this affirmative defense, Respondent
must notify the Court of that decision in the Preliminary Response. Respondent may

not file a dispositive motion as a Preliminary Response, or an Answer, or otherwise
address the merits of the claims in response to this Order.
In support of the Preliminary Response, Respondent should attach as exhibits all
relevant portions of the administrative record, including but not limited to copies of all
documents demonstrating whether Applicant has exhausted administrative remedies.
Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondent shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise the affirmative
defense of exhaustion of administrative remedies, Respondent must notify the Court of
that decision in the Preliminary Response.
Dated: April 3, 2015
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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