Opinion
Civil Action No. 12-cv-01652-BNB
08-21-2012
THOMAS HOWELL, Applicant, v. TIMME, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER TO FILE SECOND PRE-ANSWER RESPONSE
On August 20, 2012, Mr. Howell filed a Motion for Leave to File an Amended Habeas Corpus Petition, ECF No. 13, and an Amended Application, ECF No. 12. The Amended Application includes the three claims from the original Application and a new claim. In the Motion, Mr. Howell requests leave to add the fourth claim to the Application. The Court finds pursuant to Fed. R. Civ. P. 15(a) that the Motion for Leave to File is unnecessary.
As part of the preliminary consideration of the new claim, and any other additional arguments Mr. Howell asserts in the Amended Application, the Court has determined that a limited Second Pre-Answer Response is appropriate.
Respondents are directed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts and to Denson v. Abbott, 554 F.Supp. 2d 1206 (D. Colo. 2008), to file a Second 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 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 Second Pre-Answer Response. Respondents may not file a dispositive motion as their Second Pre-Answer Response, or an Answer, or otherwise address the merits of the claims in response to this Order.
In support of the Second Pre-Answer 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 Mr. Howell has exhausted state court remedies.
Mr. Howell may reply to the Pre-Answer 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. Mr. Howell 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. § 2254 action in this Court. Accordingly, it is
ORDERED that within twenty-one days from the date of this Order Respondents shall file a Second Pre-Answer Response that complies with this Order. It is
FURTHER ORDERED that within twenty-one days of the filing of the Second Pre-Answer Response Mr. Howell may file a Second Reply, if he desires. It is
FURTHER ORDERED that if Respondents do not intend to raise the affirmative defense of exhaustion of administrative remedies, Respondents must notify the Court of that decision in the Second Pre-Answer Response. It is
FURTHER ORDERED that the Motion for Leave to File an Amended Habeas Corpus Petition, ECF No. 13, is denied as unnecessary.
DATED August 21, 2012, at Denver, Colorado.
BY THE COURT:
BOYD N. BOLAND
United States Magistrate Judge