Gordon v. Arellano

Full title: DAVID GORDON, Applicant, v. WARDEN ARELLANO, and THE ATTORNEY GENERAL OF…

Court: United States District Court, D. Colorado

Date published: Jan 16, 2009

Civil Action No. 08-cv-02538-BNB (D. Colo. Jan. 16, 2009)

Opinion

Civil Action No. 08-cv-02538-BNB.

January 16, 2009

ORDER

BOYD BOLAND, Magistrate Judge

This matter arises on Applicant's Letter signed and dated January 9, 2009, and filed on January 14, 2009, and on Respondents' Pre-Answer Response filed January 12, 2009. In the Letter, Applicant asserts seven claims that are consistent with the claims he previously identified on Pages 3-4 of the Application form. Although the Court finds that Mr. Gordon improperly failed to set forth his claims under Section "D. Claims" of the Application form, that failure does not merit finding that the action is untimely under 28 U.S.C. § 2244(d), as suggested by Respondents in their Pre-Answer Response. The claims asserted in Mr. Gordon's Letter of January 14, 2009, relate back to the claims asserted on Pages 3-4 of the Application form and, therefore, relate back to the date of the original Application, avoiding a time bar. Woodward v. Williams, 263 F.3d 1135, 1142 (10^th Cir. 2001).

Nonetheless, Applicant is instructed to file an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 on the Court-approved form, and to assert under Section D. of the form the seven claims he included in the Letter of January 14, 2009, together with all other information required on the Application form. After Applicant has filed the Amended Application on the Court-approved and served it on Respondents, Respondents shall have twenty days to file a Supplement to their Pre-Answer Response addressing the affirmative defense of exhaustion as it relates to the seven claims. Accordingly, it is

ORDERED that Applicant shall file, on or before February 16, 2009, an Amended Application on the Court-approved form as directed above. It is

FURTHER ORDERED that the Clerk of the Court shall send to Applicant two copies of the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 form for use by Applicant in filing an Amended Application. It is

FURTHER ORDERED that Respondents shall have twenty days after the filing of the Amended Application to file a Supplement to their Pre-Answer Response addressing the affirmative defense of exhaustion. It is

FURTHER ORDERED that Applicant shall have twenty days after the filing of the Supplement to file a Reply to both the Supplement and to the Pre-Answer Response.