Opinion
Civil Action No. 12-cv-02402-BNB
09-12-2012
LUCAS H. LUCERO, Applicant, v. THE ATTORNEY GENERAL FOR THE STATE OF COLORADO, Respondent.
ORDER TO FILE PRELIMINARY RESPONSE
Applicant, Lucas H. Lucero, currently is detained at the Denver Detention Center in Denver, Colorado. Mr. Lucero, acting pro se, has filed an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 challenging an alleged parole hold.
As part of the preliminary consideration of the Application in this case and pursuant to Keck v. Hartley, 550 F. Supp. 2d 1272 (D. Colo. 2008), the Court has determined that a limited 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 defenses of timeliness under 28 U.S.C. § 2244(d) and/or exhaustion of state court remedies. If Respondent does not intend to raise either of these affirmative defenses, 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 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 Applicant has exhausted state court remedies.
Applicant may reply to the Preliminary 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. Applicant 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. § 2241 action in this Court.
Finally, the Court notes that Applicant lists the Denver Detention Center County Jail as Respondent in the caption of the Application. The law is well-established that the only proper respondent to a habeas corpus action is the applicant's custodian. See 28 U.S.C. § 2242; Rules 2(a) and 1(b), Rules Governing Section 2254 Cases in the United States District Courts; Harris v. Champion, 51 F.3d 901, 906 (10th Cir. 1995). Applicant appears to challenge his incarceration pursuant to a parole hold apparently placed on him in connection with his violating the conditions of his parole. Therefore, the only respondent listed in the caption of this order is the Attorney General of the State of Colorado. It the state attorney general is not the appropriate respondent, the state attorney general should advise the Court who the proper respondent is and move for a substitution of party. Accordingly, it is
ORDERED that within twenty-one 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 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 either of the affirmative defenses of timeliness or exhaustion of state court remedies, Respondent must notify the Court of that decision in the Preliminary Response.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge