Opinion
Civil Action No. 12-1029
05-14-2012
PHILLIP KEVIN BUSH, Applicant, v. MICHAEL MILLER, Warden, and CROWLEY COUNTY CORRECTIONAL FACILITY, Respondents.
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Phillip Kevin Bush, is in the custody of the Colorado Department of Corrections and is incarcerated at the Crowley County Correctional Facility in Olney, Springs, Colorado. He has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Mr. Bush has paid the $5.00 filing fee.
As part of the preliminary consideration of the Application in this case and pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has determined that a limited Preliminary Response is appropriate. Respondent Michael Miller is directed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts to file a Preliminary Response limited to addressing procedural issues, such as the affirmative defense of exhaustion of administrative remedies. If Respondent does not intend to raise an affirmative defense, Respondent must notify the Court of that decision in the Preliminary Response. Respondent may not file a dispositive motion as a Preliminary Response, or an Answer, or otherwise address the merits of the claims in response to this Order.
In support of the Preliminary Response, Respondent should attach as exhibits all relevant portions of the state court and administrative records, including but not limited to copies of all documents demonstrating whether Applicant has exhausted administrative remedies.
Applicant may reply to the Preliminary Response and provide any information that might be relevant to the exhaustion of administrative remedies or other procedural issues raised by Respondent. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order Respondent shall file a Preliminary Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the Preliminary Response Applicant may file a Reply, if he desires. It is
FURTHER ORDERED that if Respondent does not intend to raise an affirmative defense, Respondent must notify the Court of that decision in the Preliminary Response.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge