Seadin v. No Named Respondents

Filing 11

ORDER TO FILE PRELIMINARY/PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 5/28/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00915-GPG
EARNEST SEADIN, #0830-023,
Applicant,
v.
NO NAMED RESPONDENTS,
Respondents.

ORDER TO FILE PRELIMINARY/PRE-ANSWER RESPONSE

Applicant, Earnest Seadin, an inmate currently incarcerated at the Florence
Federal Correctional Institution, has submitted to the court an Application for a Writ of
Habeas Corpus under 28 U.S.C. § 2241 concerning the execution of his federal and
state sentences (ECF No. 9).
As part of the preliminary consideration of the Application in this case, the Court
has determined that a limited Response is appropriate. Because it is not clear whether
the action is truly a 28 U.S.C. § 2241 action, which is a challenge to the execution of a
sentence, or a challenge to the validity of Applicant’s conviction and sentence, which is
properly filed pursuant to 28 U.S.C. § 2254, the Court will direct the Respondents to
brief this issue.
Respondents also are directed pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts to address the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies that apply either to § 2254 actions or to § 2241 actions and procedural default.
If Respondents do not intend to raise either of these affirmative defenses, Respondents

must notify the Court of that decision in the Response.
In support of the 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 Response and provide any information that might be
relevant to the classification of this action and 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 habeas action in this Court as is necessary in response to
Respondents’ briefing regarding the classification of this action. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondents shall file a Pre-Answer or Preliminary Response that complies with this
Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the
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 Response. It is
Dated: May 28, 2015
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge
2