Mallish v. Raemisch et al
ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 11/12/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02470-GPG
MICHAEL J. MALLISH, No. 108838
RICK RAEMISCH; and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
ORDER TO FILE 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. 1) filed on November 9, 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 pursuant to Rule 4 of the Rules Governing Section
2254 Cases in the United States District Courts 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 under 28 U.S.C. § 2254(b)(1)(A) 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 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),
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. § 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 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 November 12, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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