You're viewing Docket Item 15 from the case Wallin v. Miller et al. View the full docket and case details.

Download this document:




Case 1:13-cv-01868-BNB Document 15 Filed 08/23/13 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01868-BNB

OLOYEA D. WALLIN, a.k.a. DONALD OLOYEA WALLIN, a.k.a. OLOYEA WALLIN,

Applicant,

v.

MICHAEL MILLER, Warden of Crowley County Correctional Facility, and
JOHN SUTHERS, The Attorney General of the State of Colorado,

Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

As part of the preliminary consideration of the Application for a Writ of Habeas

Corpus Pursuant to 28 U.S.C. § 2254 in this case, the Court has determined that a

limited Pre-Answer Response is appropriate. Respondents will be 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 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 Pre-Answer Response. Respondents may not file a

dispositive motion as his Pre-Answer Response, or an Answer, or otherwise address

the merits of the claims in response to this Order.



In support of the Pre-Answer Response, Respondents should attach as exhibits

all relevant portions of the state court record, including but not limited to copies of all

Case 1:13-cv-01868-BNB Document 15 Filed 08/23/13 USDC Colorado Page 2 of 2

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 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. 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. § 2254 action in this Court. Accordingly, it is

ORDERED that within twenty-one days from the date of this Order

Respondents shall file a Pre-Answer Response that complies with this Order. It is

FURTHER ORDERED that within twenty-one days of the filing of the Pre-

Answer Response Applicant may file a Reply, if he desires. It is

FURTHER ORDERED that if Respondents do not intend to raise either of the

affirmative defenses of timeliness or exhaustion of state court remedies, they must

notify the Court of that decision in the Pre-Answer Response.

Dated: August 23, 2013

BY THE COURT:

s/Boyd N. Boland
United States Magistrate Judge

2