Garcia v. Hansen et al
Filing
8
ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 6/15/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00740-GPG
JEREMY GARCIA,
Applicant,
v.
MATTHEW HANSEN, Acting 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, ECF No. 1, filed on April 9, 2015, 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), exhaustion of state court remedies under 28 U.S.C. §
2254(b)(1)(A) and procedural default. If Respondents do not intend to raise 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 and/or procedurally defaulted his available 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/procedural default of state court remedies. Applicant should address equitable
tolling, specifically if he has pursued his claims diligently and if some extraordinary
circumstance prevented him from filing a timely 28 U.S.C. § 2254 action in this Court.
Applicant also should include 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 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,
Respondents must notify the Court of that decision in the Pre-Answer Response.
DATED June 15, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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