Opinion
Civil Action No. 13-cv-02552-BNB
2013-10-22
CESAR GRAJEDA, Applicant, v. RON WILEY, Warden USP Florence ADMAX, Respondent.
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Cesar Grajeda, is in the custody of the Federal Bureau of Prisons and is incarcerated at the ADMAX facility in Florence, Colorado. Mr. Grajeda, through counsel, has filed an Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Doc. # 4]. He has paid the $5.00 filing fee.
As part of the preliminary consideration of the Amended Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 in this case and pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has determined that a Preliminary Response is appropriate. Respondent 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 the affirmative defense of exhaustion of administrative remedies under Garza v. Davis, 596 F.3d 1198, 1203 (10th Cir. 2010). If Respondent does not intend to raise the 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 administrative record, 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. Accordingly, it is
ORDERED that within twenty-one (21) 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 (21) 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 the affirmative defense of exhaustion of administrative remedies, Respondent must notify the Court of that decision in the Preliminary Response.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge