Opinion
Civil Action No. 12-cv-01652-BNB
02-21-2013
THOMAS HOWELL, Applicant, v. TIMME, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.
ORDER
Applicant, Thomas Howell, is a prisoner in the custody of the Colorado Department of Corrections at the Colorado Territorial Correctional Facility in Cañon City, Colorado. Applicant, acting pro se, initiated this action by filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241.
On June 26, 2012, Magistrate Judge Boyd N. Boland entered an order construing Applicant's claims as more properly filed pursuant to 28 U.S.C. § 2254 because he is challenging the validity of his conviction in Adams County District Court Case No. 87CR504. Magistrate Judge Boland ordered Respondents to file a Pre-Answer Response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies pursuant to 28 U.S.C. § 2254(b)(1)(A) if Respondents intend to raise either or both of those defenses in this action. On August 15, 2012, after being granted an extension of time to respond, Respondents filed a Pre-Answer Response. On the same day, Applicant signed and mailed an Amended Application to the Court. Magistrate Judge Boland entered an order instructing Respondents to file a second response addressing the additional claim Applicant raised in the Amended Application, which Respondents did on September 5, 2012. Applicant then filed two requests for an extension of time to reply. The requests were granted. On October 31, 2012, rather than reply to the Second Pre-Answer Response, Applicant filed a Second Amended Application. The Court instructed Respondents to respond to the Second Amended Application.
After being granted an extension of time, Respondents filed a Motion for Leave to Move to Dismiss § 2254 Action and a Motion to Dismiss § 2254 Action. Magistrate Judge Boland directed Applicant to respond to the Motion for Leave. On December 21, 2012, Applicant filed a response to the Motion for Leave. See ECF No. 30. Applicant also filed responses to the Motion for Leave on December 26, 2012, and on January 18, 2013.
Nothing in any of the responses asserts a basis for denying Respondents' request to file a Motion to Dismiss. Therefore, the Court will grant Respondents' Motion for Leave. Applicant is instructed to file a response to the Motion to Dismiss that addresses only the impediments he claims prevented him from filing a habeas application within the one year time limitation under 28 U.S.C. § 2244(d). The Court will not address the merits of Applicant's nine claims at this time. Accordingly, It is
ORDERED that Respondents' Motion for Leave to Move to Dismiss § 2254 Action, ECF No. 27, is granted. It is
FURTHER ORDERED that Applicant is directed to respond to the Motion to Dismiss within twenty-one days of the date of this Order. The Court will only consider arguments that address Applicant's failure to file this action within the provisions of 28 U.S.C. § 2244(d). It is
FURTHER ORDERED that Applicant's Request to Deny, ECF No. 29, is construed as a response to Respondents' Motion for Leave to Move to Dismiss. It is
FURTHER ORDERED that Applicant's Request to File His Amended Response Out of Time, ECF No. 33, is granted.
DATED February 21, 2013, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge