Firth v. Raemisch et al

Filing 8

ORDER TO FILE PRELIMINARY RESPONSE by Magistrate Judge Gordon P. Gallagher on 3/30/16. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 16-cv-00406-GPG
SCOTT FIRTH,
Applicant,
v.
RICK RAEMISCH, Executive Director for Colorado Department of Corrections, and
CYNTHIA COFFMAN, Attorney General for Colorado,
Respondents.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Scott Firth, is in the custody of the Colorado Department of
Corrections, currently incarcerated at Crowley County Correctional Facility in Olney
Springs, Colorado. Mr. Firth has filed pro se an Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 (ECF No. 1). He has paid the $5.00 filing fee.
As part of the preliminary consideration of the Application 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. Respondents are
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 Respondents do not intend to raise either of these affirmative defenses,
Respondents must notify the Court of that decision in the Preliminary Response.

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Respondents 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, 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 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 days from the date of this Order
Respondents shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the
Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondents do not intend to raise the affirmative
defense of exhaustion of administrative remedies, Respondents must notify the Court of
that decision in the Preliminary Response.

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Dated March 30, 2016, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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