Opinion
Civil Action No. 11-cv-01739-BNB
08-11-2011
ROBERT SCHWARTZ, Applicant, v. PAMELA PLOUGHE, Warden, C.T.C.F., Respondent.
John Suthers, Attorney General Office of the Attorney General DELIVERED ELECTRONICALLY COURTESY COPY James Quinn, Asst. Attorney General Office of the Attorney General DELIVERED ELECTRONICALLY COURTESY COPY
ORDER TO FILE PRELIMINARY RESPONSE
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 1, 2011, 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. 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 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.
DATED August 11, 2011, at Denver, Colorado.
BY THE COURT:
Boyd N. Boland
United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
CERTIFICATE OF MAILING
Civil Action No. 11-cv-01739-BNB Robert Schwartz
Prisoner No. 60801
Colorado Territorial Correctional Facility
PO Box 1010
Canon City, CO 81215
Pamela Plought, Warden
c/o Keith Nordell
Colorado Department of Corrections
Office of Legal Affairs
DELIVERED ELECTRONICALLY
John Suthers, Attorney General
Office of the Attorney General
DELIVERED ELECTRONICALLY
COURTESY COPY
James Quinn, Asst. Attorney General
Office of the Attorney General
DELIVERED ELECTRONICALLY
COURTESY COPY
I hereby certify that I have mailed a copy of the ORDER to the above-named individuals, and the following forms to Keith Nordell for service of process on Pamela Ploughe: APPLICATION FOR WRIT OF HABEAS CORPUS FILED 07/1/11 on August 11, 2011.
GREGORY C. LANGHAM, CLERK
By: __________
Deputy Clerk