Betts v. Archuleta et al
ORDER TO FILE PRE-ANSWER RESPONSE by Magistrate Judge Gordon P. Gallagher on 10/14/15. (dkals, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-02164-GPG
DONALD LANE BETTS,
LOU ARCHULETA, Warden of Fremont Correctional Facility, and
CYNTHIA COFFMAN, Attorney General of the State of Colorado,
ORDER TO FILE PRE-ANSWER RESPONSE
As part of the preliminary consideration of the amended Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 5) filed October 13, 2015, in this
action and pursuant to Denson v. Abbott, 554 F. Supp. 2d 1206 (D. Colo. 2008), 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, Respondents must notify the Court of that decision in the
Pre-Answer Response. Respondents may not file a dispositive motion as the
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
Respondents 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, Respondents
must notify the Court of that decision in the Pre-Answer Response.
DATED October 14, 2015, at Denver, Colorado.
BY THE COURT:
s/ Gordon P. Gallagher
United States Magistrate Judge
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