Medina v. Archuleta

Filing 9

ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 8/21/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01334-GPG
JOSEPH MEDINA,
Applicant,
v.
LOU ARCHULETA,
THE ATTORNEY GENERAL OF COLORADO,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

Applicant, Joseph Medina, is a prisoner in the custody of the Colorado
Department of Corrections, currently incarcerated in Canon City, Colorado. On June
22, 2015, Mr. Medina filed pro se an Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (ECF No. 1) and a Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2). On
June 24, 2015, the Court denied Mr. Medina’s motion seeking leave to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915 and ordered him to pay the $5.00 filing fee within
thirty days of the order if he wished to pursue his claims. (ECF No. 4).
On August 3, 2015, the Court denied the § 2254 application and dismissed the
case without prejudice pursuant to Fed.R.Civ.P. 41(b) for failure to pay the $5.00 filing
fee and for failure to prosecute. On August 13, 2015, the Court vacated the Order of
Dismissal and Judgment and reinstated the case after learning that Mr. Medina had
timely paid the $5.00 filing fee but it was mistakenly not docketed in his case. (ECF No.
8). Mr. Medina’s 2254 application challenges his 1996 conviction in El Paso County
District Court in case 95CR3977.

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. Respondent, the Attorney General of the
State of Colorado, is directed pursuant to Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts and Denson v. Abbott, 554 F.Supp. 2d 1206
(D. Colo. 2008), to file a Pre-Answer Response addressing the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies under
28 U.S.C. § 2254(b)(1)(A). If Respondent does not intend to raise either of these
affirmative defenses, he must notify the Court of that decision in the Pre-Answer
Response.
In support of the Pre-Answer Response, Respondent 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
Respondent, the Attorney General of the State of Colorado, shall file a Pre-Answer
Response that complies with this Order and addresses exhaustion, timeliness, and
jurisdiction issues. It is
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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 Respondent, the Attorney General of the State of
Colorado, does not intend to raise either of the affirmative defenses of timeliness or
exhaustion of state court remedies, he must notify the Court of that decision in the PreAnswer Response.
Dated: August 21, 2015
BY THE COURT:
s/Gorgon P. Gallagher
United States Magistrate Judge

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