Opinion
Civil Action No. 12-cv-01401-BNB
05-31-2012
JAMES ARLEN CHILDS, Applicant, v. TOM CLEMENTS, Executive Director, DOC, Respondent.
ORDER GRANTING APPLICANT LEAVE TO PROCEED IN FORMA PAUPERIS
AND DIRECTING RESPONDENT TO FILE PRELIMINARY RESPONSE
Applicant, James Arlen Childs, is a prisoner in the custody of the Colorado Department of Corrections, who currently is incarcerated at the Centennial Correctional Facility in Cañon City, Colorado. Mr. Childs initiated this action on May 30, 2012, by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action (ECF No. 2). The § 1915 motion will be granted.
As part of the preliminary consideration of the § 2241 application, 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. Respondents are 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 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, they must notify the Court of that decision in the Preliminary Response. Respondents may not file a dispositive motion as their Preliminary Response, or an Answer, or otherwise address the merits of the claims in response to this Order.
In support of the Preliminary 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 also should include 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. § 2241 action in this Court.
Applicant may reply to the Preliminary 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.
Accordingly, it is
ORDERED that Applicant's Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 2) is granted. It is
FURTHER ORDERED that within twenty-one (21) days from the date of this Order Respondents shall file a Preliminary 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, they must notify the Court of that decision in the Preliminary Response.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge