Opinion
Civil Action No. 11-cv-01981-BNB
08-25-2011
SECOND ORDER FOR PRE-ANSWER RESPONSE
Before the Court is Respondent's Motion for Leave to File Motion to Dismiss (Dkt. #8), filed on August 23, 2011.
On August 9, 2011, the Court ordered the Respondents to file a Pre-Answer Response to the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed by David Richard Caine. The Court instructed Respondents that the Pre-Answer Response should address 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). The Court also directed Respondents to 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. Respondents were advised that if they do not intend to raise either of these affirmative defenses, they must notify the Court of that decision in the Pre-Answer Response. Respondents were also advised that they may not file a dispositive motion as their Pre-Answer Response.
Respondents now seek leave of Court to file a motion to dismiss the § 2254 Application as time-barred. That motion will be denied, pursuant to the Court's directive in the August 9 Order.
Respondents are further advised that if they intend to assert the defense of failure to exhaust state court remedies, they must do to in their Pre-Answer Response. Respondents shall attach as exhibits all relevant portions of the state court record. Accordingly, it is
ORDERED that Respondent's Motion for Leave to File Motion to Dismiss (Dkt. #8), filed on August 23, 2011 is DENIED. It is
FURTHER 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 and with the August 9 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, they must notify the Court of that decision in the Pre-Answer Response.
BY THE COURT:
BOYD N. BOLAND
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01981-BNB David Richard Cain
Prisoner No. 01390
Fremont Correctional Facility
PO Box 999
Canon City, CO 81215
Christine Cates Brady
Colorado Attorney General's Office
DELIVERED ELECTRONICALLY
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals on August 25, 2011.
GREGORY C. LANGHAM, CLERK
By: __________
Deputy Clerk