Burkhart v. Archuletta et al
ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 9/16/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02007-GPG
DAVID LEE BURKHART,
LOU ARCHEULETA, Warden; and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO FILE PRE-ANSWER RESPONSE
As part of the preliminary consideration of the Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) filed September 14, 2015, and
pursuant to Denson v. Abbott, 554 F. Supp. 2d 1206 (D. Colo. 2008), the Court has
determined that a limited Pre-Answer Response is appropriate.
Respondents are directed to file a Pre-Answer Response limited to addressing
the affirmative defenses of timeliness under 28 U.S.C. § 2244(d), exhaustion of state
court remedies and/or procedural default. If Respondents do not intend to raise any of
these affirmative defenses, Respondents must notify the Court of that decision in the
Pre-Answer Response. Respondents may not file a dispositive motion as the PreAnswer 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),
exhaustion of state court remedies and/or procedural default. 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. § 2241 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 thirty (30) 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 thirty (30) 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 any of the
affirmative defenses, Respondents must notify the Court of that decision in the PreAnswer Response.
DATED September 16, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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