Estes v. Werlich et al

Filing 12

ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 2/10/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00141-GPG
JONATHAN N. ESTES,
Applicant,
v.
T. G. WERLICH, Warden,
M. D. CARVAJAL, Complex Warden,
RICK RAEMISCH, Director of C.D.O.C., and
CYNTHIA COFFMAN 1, Attorney General of the State of Colorado,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

Applicant is a prisoner at a federal prison in Louisiana. Applicant has filed pro se
on February 8, 2016, an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. §
2254 (ECF No. 9) challenging the validity of his conviction in Denver, Colorado, District
Court case number 05CR674. As part of the preliminary consideration of the Application
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. Therefore, pursuant to
Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts,
Respondents Rick Raemisch and Cynthia Coffman (“the Colorado Respondents”) will be
directed to file a Pre-Answer Response. Respondents T. G. Werlich and M. D. Carvajal
are not required to file a Pre-Answer Response.
The Colorado Respondents are directed to address in their Pre-Answer Response

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Cynthia Coffman, the current Attorney General for the State of Colorado, is substituted for former
Colorado Attorney General John Suthers.

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 the Colorado Respondents do
not intend to raise either of these affirmative defenses, the Colorado Respondents must
notify the Court of that decision in the Pre-Answer Response. The Colorado
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, the Colorado 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 the
Colorado 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 the Colorado Respondents do not intend to raise

either of the affirmative defenses of timeliness or exhaustion of state court remedies, the
Colorado Respondents must notify the Court of that decision in the Pre-Answer
Response.
DATED February 10, 2016, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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