Martinez v. Kammerzell

Filing 3

ORDER TO FILE PRELIMINARY RESPONSE by Magistrate Judge Gordon P. Gallagher on 8/26/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01836-GPG
DIMPSEY MARCUS MARTINEZ,
Applicant,
v.
U.S. MARSHAL JOHN KAMMERZELL,
Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant Dimpsey Marcus Martinez currently is detained at the Denver
Downtown Detention Center in Denver, Colorado. Applicant initiated this action by filing
an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 and paying
the $5 filing fee. Applicant is challenging a detainer that he alleges was entered against
him by the U.S. Marshal sometime prior to May 30, 2015; and he contends that there is
no pending federal criminal case that would substantiate a detainer and his current
detainment.
As part of the preliminary consideration of the Application 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. Respondent is 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
defense of exhaustion of available remedies, if applicable, with respect to the detainer.
If Respondent does not intend to raise this affirmative defense, he must notify the Court
of that decision in the Preliminary Response. Respondent may not file a dispositive

motion as a Preliminary Response, or an Answer, or otherwise address the merits of the
claims in response to this Order.
In support of the Preliminary Response, Respondent should attach as exhibits all
relevant portions of the administrative record, including but not limited to copies of all
documents demonstrating whether Applicant has exhausted the available remedies.
Applicant may reply to the Preliminary Response and provide any information
that might be relevant to the exhaustion of remedies. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order
Respondent 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 Respondent does not intend to raise the affirmative
defenses of exhaustion of remedies, he must notify the Court of that decision in the
Preliminary Response.
Dated: August 26, 2015
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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