Glaser v. Trani et al

Filing 19

ORDER TO FILE SECOND SUPPLEMENT TO PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 3/31/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-02427-GPG
DOUGLAS A. GLASER,
Applicant,
v.
TRAVIS TRANI, and
CYNTHIA A. COFFMAN, Attorney General of the State of Colorado,
Respondents.

ORDER TO FILE SECOND SUPPLEMENT TO PRE-ANSWER RESPONSE

As part of the preliminary consideration of the amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6) filed in this action December
23, 2015, the Court ordered Respondents to file a Pre-Answer Response limited to
addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and/or
exhaustion of state court remedies. On March 16, 2016, Respondents filed a
Pre-Answer Response (ECF No. 16) and on March 21, 2016, Respondents filed a
Supplement to Pre-Answer Response (ECF No. 17). On March 30, 2016, Applicant filed
Applicant’s Pre-Answer Reply (ECF No. 18).
One argument raised by Respondents is that Applicant has failed to exhaust state
remedies because his petition for writ of certiorari to the Colorado Supreme Court on
direct appeal remains pending. Respondents do not address, however, Applicant’s
argument that the exhaustion argument should be excused because of inordinate delay in
resolving his direct appeal. See Harris v. Champion, 15 F.3d 1538, 1555-56 (10th Cir.

1994) (establishing a presumption that exhaustion should be excused when delay in
adjudicating a direct criminal appeal exceeds two years). Therefore, Respondents will
be directed to file a second supplement to the Pre-Answer Response that addresses
whether the exhaustion argument should be excused on the basis of inordinate delay.
Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order
Respondents shall file a second supplement to the Pre-Answer Response that complies
with this Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of any
second supplement to the Pre-Answer Response Applicant may file a Reply to the
second supplement, if he desires.
DATED March 31, 2016, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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