Opinion
Civil Action No. 11-cv-02923-BNB
01-17-2012
WILLIE BRAXTON, Applicant, v. TRAVIS TRANI, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER TO FILE SUPPLEMENT TO 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 (Doc. #5) filed on December 1, 2011, in this action, the court ordered Respondents 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. On December 29, 2011, Respondents filed a Pre-Answer Response (Doc. #10) and on January 11, 2012, Applicant filed a Reply to Pre-Answer Response (Doc. #11).
Respondents argue in the Pre-Answer Response that the application is barred by the one-year limitation period in 28 U.S.C. § 2244(d). According to Respondents, the one-year limitation period began to run on May 19, 2008, and was tolled from April 1, 2009, until April 12, 2011, while the proceedings relevant to a postconviction Rule 35(c) motion filed by Applicant were pending in state court. Respondents do not mention or address the impact of any other state court postconviction filings by Applicant. However, according to the state court docket sheet provided by Respondents, Applicant filed a postconviction Rule 35(b) motion on September 22, 2008, that could affect application of the one-year limitation period. (See Doc. #10-1 at 11-12.) Applicant also has submitted a copy of a Colorado Supreme Court order dated October 4, 2011, denying another state court postconviction filing that Respondents do not mention or address. (See Doc. #1 at 15; Doc. #11 at 4.) Therefore, Respondents will be directed to file a supplement to the Pre-Answer Response that addresses these and any other additional state court postconviction filings by Applicant and how they impact application of the one-year limitation period. Accordingly, it is
ORDERED that within twenty-one (21) days from the date of this Order Respondents shall file a supplement to the Pre-Answer Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one (21) days of the filing of any supplement to the Preliminary Response Applicant may file a Reply to the supplement, if he desires.
DATED at Denver, Colorado, this 17th day of January, 2012.
BY THE COURT:
_____________________
Craig B. Shaffer
United States Magistrate Judge