Gay v. Archuleta

Filing 7

ORDER TO FILE PRE-ANSWER RESPONSE AND TO RESPOND TO MOTION TO HOLD CLAIM 6 IN ABEYANCE 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-00600-GPG
BYRON KYLE GRAY,
Applicant,
v.
LOU ARCHULETA, Warden, FCF, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE
AND TO RESPOND TO MOTION TO HOLD CLAIM 6 IN ABEYANCE

As part of the preliminary consideration of the Amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. ' 2254 filed on March 12, 2015 (ECF No. 8), 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) 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.
In the Pre-Answer Response, Respondents should also address Applicant’s
“Motion to Hold In Abeyance Claim No. 6 (Leg Brace Issue) Until Final Outcome of
Remand of Colorado Court of Appeals” (ECF No. 4).
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, as well as his motion to hold claim 6 in abeyance.
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
Respondent The Attorney General of the State of Colorado 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, the
Respondent Attorney General of the State of Colorado must notify the Court of that
decision in the Pre-Answer Response.

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Dated March 15, 2016, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge

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