Nicholas v. Falk et al
Filing
9
ORDER To Respondents To File Pre-Answer Response, by Magistrate Judge Gordon P. Gallagher on 03/24/15. (nmarb, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00476-GPG
DUANE ERIC NICHOLAS,
Petitioner,
v.
JAMES FALK, Warden, 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 in this case, 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 and to Denson
v. Abbott, 554 F.Supp. 2d 1206 (D. Colo. 2008), to file a Pre-Answer Response limited to
addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or
exhaustion/procedural default 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, they must notify
the Court of that decision in the Pre-Answer Response. Respondents may not file a
dispositive motion as their 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 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 days of the filing of the PreAnswer 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/procedural default of state court remedies,
they must notify the Court of that decision in the Pre-Answer Response.
Dated: March 24, 2015
BY THE COURT:
/s Gordon P. Gallagher
Gordon P. Gallagher
United States Magistrate Judge
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