Frazier v. Suthers et al

Filing 5

ORDER DIRECTING RESPONDENTS TO FILE PRELIMINARY RESPONSE by Magistrate Judge Gordon P. Gallagher on 7/2/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01031-GPG
FELA J. FRAZIER,
Applicant,
v.
JOHN CHAPDELAIN, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER DIRECTING RESPONDENTS TO FILE PRELIMINARY RESPONSE

Applicant, Fela J. Frazier, currently is incarcerated at the Sterling Correctional
Facility in Sterling, Colorado. Mr. Frazier, acting pro se, filed an amended Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 4) alleging he is being held
in violation of an illegal bill of attainder.
As part of the preliminary consideration of the amended Application for Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 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. Respondents are 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 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 any of these affirmative
defenses, Respondents must notify the Court of that decision in the Preliminary Response.
Respondents may not file a dispositive motion as the Preliminary Response, or an

Answer, or otherwise address the merits of the claims in response to this Order.
In support of the Preliminary 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 Preliminary Response and provide any information that
might be relevant to the one-year limitation period under 28 U.S.C. § 2244(d), exhaustion
of state court remedies and/or procedural default. 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. § 2241 action in this Court. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondents 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 Respondents do not intend to raise any of the
affirmative defenses of timeliness, exhaustion of state court remedies or procedural
default, Respondents must notify the Court of that decision in the Preliminary Response.
Dated: July 2, 2015
BY THE COURT:
s/ Gordon P. Gallagher
GORDON P. GALLAGHER
United States Magistrate Judge

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