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Case 1:13-cv-01926-BNB Document 5 Filed 07/30/13 USDC Colorado Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-01926-BNB

FREDRICK D. DEBERRY,

Applicant,

v.

DAVID BERKEBILE,

Respondent.

ORDER TO FILE PRELIMINARY RESPONSE

Applicant, Fredrick D. Deberry, is a prisoner in the custody of the United States

Bureau of Prisons, who currently is incarcerated at the United States Penitentiary in

Florence, Colorado. Mr. Deberry initiated this action by filing an Application for a Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2241. He has been granted leave to proceed

pursuant to 28 U.S.C. § 1915.

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

defense of exhaustion of administrative remedies with respect to the execution of his

sentence. If Respondent does not intend to raise this affirmative defense, Respondent

must notify the Court of that decision in the Preliminary Response. Respondent may

Case 1:13-cv-01926-BNB Document 5 Filed 07/30/13 USDC Colorado Page 2 of 2

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 administrative record, including but not limited to copies of all

documents demonstrating whether Mr. Deberry has exhausted administrative remedies.

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 the affirmative

defense of exhaustion of administrative remedies, Respondent must notify the Court of

that decision in the Preliminary Response.

Dated: July 30, 2013

BY THE COURT:

s/Boyd N. Boland
United States Magistrate Judge

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