Shea v. Raemicsh et al

Filing 3

ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 10/26/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02354-GPG

DANNY SHEA,
Applicant
v.
RICK RAEMISCH, Executive Director, CDOC,
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

On October 23, 2015, Applicant, Danny Shea, filed pro se an Application for a
Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. (ECF No. 1). Mr. Shea is
currently incarcerated in Lucasville, Ohio. He is challenging his conviction in Denver
District Court case 04CR4896. He has paid the $5.00 filing fee. (Id.)
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. Respondents are 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) and/or
procedural default. If Respondents do not intend to raise any of these affirmative

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defenses, they must notify the Court of that decision in the Pre-Answer Response.
Respondents may not file a dispositive motion as the 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 also 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
Respondents shall file a Pre-Answer Response that complies with this Order and
addresses exhaustion, timeliness, and jurisdiction issues. It is
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 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.

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Dated: October 26, 2015
BY THE COURT:
s/Gordon P. Gallagher
United States Magistrate Judge

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