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Case 1:13-cv-02558-BNB Document 8 Filed 10/21/13 USDC Colorado Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 13-cv-02558-BNB

CRAIG ROBLEDO-VALDEZ,

Applicant,

v.

J. DAVIS, and
SUTHERS, Attorney General of the State of Colorado,

Respondents.

ORDER TO FILE PRE-ANSWER RESPONSE

Applicant has filed pro se on October 17, 2013, an Application for a Writ of

Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 4). As part of the preliminary

consideration of the Application and pursuant to Denson v. Abbott, 554 F. Supp. 2d

1206 (D. Colo. 2008), the Court has determined that a limited Pre-Answer Response is

appropriate. Respondents are directed pursuant to Rule 4 of the Rules Governing

Section 2254 Cases in the United States District Courts 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, Respondents

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

not file a dispositive motion as the 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

Case 1:13-cv-02558-BNB Document 8 Filed 10/21/13 USDC Colorado Page 2 of 3

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 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.

Finally, the court notes that Applicant improperly names the United States of

America as a Respondent in the caption of the Application. Because the law is well-

established that the only proper respondent to a habeas corpus action is the habeas

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; and Harris v. Champion, 51

F.3d 901, 906 (10th Cir. 1995), the United States of America is not listed as a

Respondent in the caption of this order and will not be required to file any response in

this action. Accordingly, it is

ORDERED that the only properly named Respondents for the purpose of service

are the Respondents listed in the caption of this order. It is

FURTHER ORDERED that within twenty-one (21) 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 (21) days of the filing of the

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Case 1:13-cv-02558-BNB Document 8 Filed 10/21/13 USDC Colorado Page 3 of 3

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, Respondents

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

DATED October 21, 2013, at Denver, Colorado.

BY THE COURT:

s/ Boyd N. Boland
United States Magistrate Judge

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