Opinion
Civil Action No. 11-cv-00657-BNB.
September 20, 2011
ORDER
Pursuant to the Order and Judgment of the United States Court of Appeals for the Tenth Circuit, a copy of which was filed in this court on August 17, 2011, this matter is before the court to consider Applicant's "failure of service claim in the first instance." (Doc. #26 at 3-4.) Applicant is a prisoner in the custody of the Colorado Department of Corrections, incarcerated at the Sterling Correctional Facility in Sterling, Colorado. Applicant initiated this action by filing an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the validity of his state court criminal convictions in two cases in the Fremont County District Court. On April 18, 2011, Applicant filed an amended habeas corpus application raising eleven claims for relief.
On April 19, the court ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness and exhaustion of state court remedies. On May 13, 2011, Respondents filed a Pre-Answer Response (Doc. #15) arguing that this action is untimely and that some of Applicant's claims are unexhausted and procedurally barred. On June 17, 2011, Senior Judge Lewis T. Babcock entered an order dismissing the entire action as untimely and declining to address the exhaustion and procedural bar arguments. Senior Judge Babcock noted that Applicant had not filed a reply to the Pre-Answer Response despite being given an opportunity to do so.
On June 23, 2011, Applicant filed a "Motion for Leave for Discovery" (Doc. #18) in which he indicated that Respondents had not filed a Pre-Answer Response in this action. Also on June 23, 2011, Applicant filed a notice of appeal from the order dismissing this action in which he stated explicitly that he had not received a copy of the Pre-Answer Response filed in this action. On appeal, the Tenth Circuit Court of Appeals concluded that "the appropriate course is to grant a certificate of appealablity ("COA"), reverse, and remand so that the district court may revisit the issue and address the arguments raised by [Applicant], including any potential claim of actual innocence." (Doc. #26 at 3.)
The court finds that further briefing is necessary to address these issues. Therefore, Applicant will be directed to file a response that addresses the failure of service issue as well as the affirmative defenses raised by Respondents in their Pre-Answer Response, including any potential claim of actual innocence. Respondents will be directed to provide Applicant with a copy of the Pre-Answer Response, including attachments, and Applicant's response will be due within twenty-one days after he is served with a copy of the Pre-Answer Response. Respondents will be allowed to file a reply that addresses the failure of service issue as well as any potential claim of actual innocence Applicant may raise. Accordingly, it is
ORDERED that Respondents serve a copy of their Pre-Answer Response, including attachments, on Applicant within seven (7) days from the date of this order and file a certificate of service with the manner and date of service. It is
FURTHER ORDERED that Applicant shall have twenty-one (21) days after being served a copy of the Pre-Answer Response to file a response that addresses the failure of service issue as well as the affirmative defenses raised by Respondents in their Pre-Answer Response, including any potential claim of actual innocence. It is
FURTHER ORDERED that Respondents shall have fourteen (14) days after Applicant files his response to file a reply, if any.