Lucero v. Carlson et al
ORDER TO FILE PRELIMINARY RESPONSE by Magistrate Judge Gordon P. Gallagher on 3/15/16. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00142-GPG
MARY CARLSON, Manager of Offender Time/Release (CDOC), and
ANGEL MEDINA, Warden of Arrowhead Correctional Center,
ORDER TO FILE PRELIMINARY RESPONSE
As part of the preliminary consideration of the amended application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241 (ECF No. 5) filed February 5, 2016, in this
case and pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court
has determined that a limited Preliminary Response is appropriate. Respondent is
directed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts to file a Preliminary Response that addresses the affirmative
defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court
remedies. If Respondent does not intend to raise either of these affirmative defenses,
Respondent must notify the Court of that decision in the Preliminary Response.
Respondent may not file a dispositive motion as a Preliminary Response, or an Answer,
or otherwise address the merits of the claims in response to this Order.
In support of the Preliminary Response, Respondent 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 Preliminary Response and provide any information
and argument that might be relevant to the one-year limitation period under § 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. § 2241 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
Respondent shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise either of the
affirmative defenses of timeliness or exhaustion of state court remedies, Respondent
must notify the Court of that decision in the Preliminary Response.
DATED March 15, 2016, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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