Opinion
Civil Action No. 12-cv-01770-BNB
08-06-2012
PATRICK J. ROSELLI, Applicant, v. T. K. COZZA-RHODES, Warden, Respondent.
SECOND ORDER TO FILE PRELIMINARY RESPONSE
On July 10, 2012, Respondent was ordered to file within twenty-one days a Preliminary Response to the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (ECF No. 1) filed on July 9, 2012, in this action.
A certificate of service (ECF No. 5) was filed on July 13, 2012. A certified mail receipt dated July 17, 2012 (ECF No. 6), was filed on July 19, 2012. An acknowledgment of receipt of service (ECF No. 7) was filed on July 20, 2012. Another certified mail receipt dated June 25, 2012 (ECF No. 8) was filed on July 26, 2012. However, Respondent has failed either to submit the requested Preliminary Response or to communicate with the Court as to why Respondent is unable to comply with the July 10 order, served on July 13, within the time allowed.
As part of the preliminary consideration of the Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 filed on July 9, 2012, in this case and pursuant to Redmon v. Wiley, 550 F. Supp. 2d 1275 (D. Colo. 2008), the Court again directs Respondent 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. If Respondent does not intend to raise this 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 copies of any administrative grievances Applicant has filed raising the issues asserted in the Application, as well as any responses to those grievances. Applicant may reply to the Preliminary Response and provide any information that might be relevant to his efforts to exhaust administrative remedies. Accordingly, it is
ORDERED that within fifteen (15) 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.
DATED August 6, 2012, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge