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IN THE UNITED STATES DISTRICT COURT UNITED FILLED court

FOR THE DISTRICT OF COLORADO DENVER. GNI NeANO
Civil Action No. 11-cv-02353-BNB SEP 13 201
LONG BA PHAN, GREGORY C. LANGHAM
CLERK

Applicant,
v.

BRIGHAM SLOAN, and
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 are 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 their 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
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, itis

ORDERED that within twenty-one days from the date of this Order
Respondents shall file a Pre-Answer Response that complies with this Order. Itis

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 at Denver, Colorado, this 12" day of September, 2011.

BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

CERTIFICATE OF MAILING
Civil Action No. 11-cv-02353-BNB

Long Ba Phan

Prisoner No. 109552

Bent County Correctional Facility
11560 Road FF75

Las Animas, CO 81054

Brigham Sloan - CERTIFIED
Bent County Correctional Facility
11560 Road FF75

Las Animas, CO 81054

John Suthers, Attorney General
Office of the Attorney General
DELIVERED ELECTRONICALLY

James Quinn, Asst. Attorney General
Office of the Attorney General
DELIVERED ELECTRONICALLY
COURTESY COPY

| hereby certify that | have mailed a copy of the ORDER to the above-named
individuals, and the following forms to Brigham Sloan: APPLICATION FOR WRIT OF
HABEAS CORPUS FILED 9/7/11 on September 13, 2011.

GREGORY C. LANGHAM, CLERK

By:

77 Deputy Clerk