Betts v. Archuleta et al

Filing 16

ORDER OVERRULING OBJECTION by Judge Lewis T. Babcock on 12/1/15. (dkals, ) Modified on 12/1/2015 to attach correct pdf (dkals, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02164-GPG
DONALD LANE BETTS,
Applicant,
v.
LOU ARCHULETA, Warden of Fremont Correctional Facility, and
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
Respondents.

ORDER OVERRULING OBJECTION

This matter is before the Court on “Applicant’s Specific Objection to the Second
Order to File Pre-Answer Response” (ECF No. 13) filed pro se by Applicant, Donald Lane
Betts, on November 19, 2015.
Mr. Betts initiated this action by filing a Petition for Habeas Corpus (ECF No. 1) that
was not on the proper form as required by the local rules for the District of Colorado. Mr.
Betts was given an opportunity to correct this deficiency and, on October 13, 2015, he
filed on the proper form an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C.
§ 2254 (ECF No. 5). Mr. Betts is challenging the validity of his conviction in a Colorado
state court criminal case.
On October 14, 2015, Magistrate Judge Gordon P. Gallagher ordered
Respondents to file a Pre-Answer Response that addresses the affirmative defenses of
timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28
U.S.C. § 2254(b)(1)(A). (See ECF No. 6.) Respondents did not file a Pre-Answer

Response within the time allowed. On November 10, 2015, Magistrate Judge Gallagher
entered a Second Order to File Pre-Answer Response (ECF No. 8) and this is the order to
which Mr. Betts objects. He argues in his objection that, “[a]lthough this court has
discretion to issue extensions of time, the court is abusing it’s [sic] discretion by allowing
an extension Sua Sponte.” (ECF No. 13 at 1.)
On November 30, 2015, Respondents filed their Pre-Answer Response (ECF No.
15) arguing that this action is untimely and that Mr. Betts has failed to exhaust state
remedies. Respondents also allege in the Pre-Answer Response that they did not
receive the first order directing them to file a Pre-Answer Response.
Pursuant to 28 U.S.C. § 636(b)(1)(A) a judge may reconsider any pretrial matter
designated to a magistrate judge to hear and determine where it has been shown that the
magistrate judge’s order is clearly erroneous or contrary to law. The Court has reviewed
the file and finds that Magistrate Judge Gallagher’s Second Order to File Pre-Answer
Response is not clearly erroneous or contrary to law. Therefore, the objection will be
overruled. Mr. Betts may file a reply to the Pre-Answer Response that addresses the
affirmative defenses raised by Respondents. Accordingly, it is
ORDERED that “Applicant’s Specific Objection to the Second Order to File
Pre-Answer Response” (ECF No. 13) is overruled.
DATED at Denver, Colorado, this 1st

day of

December

, 2015.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court
2