Medina v. Archuleta et al

Filing 5

ORDER to File Pre-Answer Response. 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. The Prisoner' Moti on and Affidavit for Leave to proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3 ) is denied s moot. Plaintiff paid the $5.00 filing fee when he initiated this action, by Magistrate Judge Gordon P. Gallagher on 5/12/2017. (agarc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01174-GPG
(The above civil action number must appear on all future papers
sent to the Court in this action. Failure to include this number
may result in a delay in the consideration of your claims.)
DAVID MEDINA,
Applicant,
v.
LOU ARCHULETA, Warden, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

Applicant, David Medina, has filed pro se an Application for a Writ of Habeas
Corpus Pursuant to 28 U.S.C. ' 2254 and paid the $5.00 filing fee.
The Court has determined that a limited Pre-Answer Response to the § 2254
Application 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.
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
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 PreAnswer 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. It is
FURTHER ORDERED that the Prisoner’s Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 3) is denied
as moot. Plaintiff paid the $5.00 filing fee when he initiated this action.

Dated May 12, 2017, at Denver, Colorado.
BY THE COURT:

s/ Gordon P. Gallagher
United States Magistrate Judge

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