Aguilar v. Zupan et al
ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 9/11/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-01945-GPG
COLORADO STATE ATTORNEY GENERAL,
ORDER TO FILE PRE-ANSWER RESPONSE
Applicant, Antonio Aguilar, is a prisoner in the custody of the Colorado
Department of Corrections, currently incarcerated in Canon City, Colorado. On
September 8, 2015, Mr. Aguilar filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (ECF No. 1). He has been granted leave to proceed in
forma pauperis. (ECF No. 5). Mr. Aguilar’s § 2254 application challenges his 2005
conviction in Jefferson County District Court case 03CR2633.
As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2254, the Court has determined that a limited PreAnswer 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 PreAnswer Response limited to 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 Respondents do not intend to raise either of these affirmative
defenses, they must notify the Court of that decision in the Pre-Answer Response.
Respondents may not file a dispositive motion as their 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 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 should include any 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, and 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 (21) 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 (21) 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 of state court remedies, they must notify
the Court of that decision in the Pre-Answer Response.
Dated September 11, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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