Opinion
Civil Action No. 11-cv-01955-BNB
09-22-2011
ROBERT J. FREEMAN, Applicant, v. ARISTEDES ZAVARAS, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER TO FILE SUPPLEMENT TO PRELIMINARY RESPONSE
As part of the preliminary consideration of the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 filed on July 28, 2011, 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 August 25, 2011, Respondents filed a Pre-Answer Response and on September 14, 2011, Applicant filed a reply to the Pre-Answer Response.
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) and that two of Applicant's claims are unexhausted and procedurally barred. With respect to the one-year limitation period, Applicant argues in his reply that the one-year limitation period should be equitably tolled because he did not have access to files and transcripts for a period of time and because the prosecution did not disclose certain exculpatory evidence that demonstrates his actual innocence until October 2008. Respondents have not had an opportunity to address Applicant's equitable tolling and actual innocence arguments. Therefore, Respondents will be directed to file a supplement to the Pre-Answer Response that addresses Applicant's equitable tolling and actual innocence arguments if Respondents wish to respond to those arguments. 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 if Respondents wish to respond to Applicant's equitable tolling and actual innocence arguments. 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 September 22, 2011, at Denver, Colorado.
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-01955-BNB Robert J Freeman
Prisoner No. 102492
Arkansas Valley Correctional Facility
PO Box 1000
Crowley, CO 81034
Elizabeth Fraser Rohrbough
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 September 22, 2011.
GREGORY C. LANGHAM, CLERK
By: __________
Deputy Clerk