Harding v. Raemisch et al

Filing 8

ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 1/25/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02774-GPG
LINDSAY T. HARDING,
Applicant,
v.
RICHARD F. RAEMISCH; and
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

Applicant, Lindsay T. Harding, is a prisoner in the custody of the Colorado
Department of Corrections, and is currently incarcerated in Buena Vista, Colorado. On
December 21, 2015, Mr. Harding filed, pro se, an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. ' 2254 (ECF No. 1). He has paid the $5.00 filing fee. (ECF No.
7).
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 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 any jurisdictional issues, as well as 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
Pre-Answer 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 January 25, 2016, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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