Free Motion to Amend/Correct/Modify - District Court of Colorado - Colorado

Case 1:04-cv-01072-ZLW-BNB

Document 91

Filed 08/15/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-CV-01072-ZLW-BNB JOHN E. LOPEZ, Applicant, v. CARL ZENON, and JOHN W. SUTHERS, The Attorney General of the State of Colorado, Respondents. UNOPPOSED MOTION TO FILE AN AMENDED ANSWER IN RESPONSE TO AMENDED PETITION PURSUANT TO 28 U.S.C. SECTION 2254 Respondents, by the Attorney General of the State of Colorado, seek permission to respond within 60 days to applicant's Amended Petition Pursuant to 28 U.S.C. Section 2254. Reasons: 1. Applicant filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in May 2004. 2. Respondents filed an answer to applicant's petition in August 2004. 3. This Court appointed Robert Levitt as counsel for applicant in July 2005 and granted Mr. Levitt until October 14, 2005, to file an amended petition. Mr. Levitt subsequently moved for appointment of an investigator and to continue the briefing schedule. He obtained extensions of time to file his amended petition until July 13, 2006. 4. On July 13, 2006, Mr. Levitt filed a Supplemental Memorandum of Law in Support of Applicant's Writ of Habeas Corpus Petition Pursuant to 28 U.S.C. Section 2254. This

Case 1:04-cv-01072-ZLW-BNB

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Court struck this memorandum of law because it referenced and incorporated applicant's pro se petition. 5. On August 14, 2006, Mr. Levitt filed an Amended Petition Pursuant to 28 U.S.C. Section 2254, which complies with this Court's order not to incorporate the pro se petition. In this amended petition, Mr. Levitt includes new facts obtained through his investigator concerning applicant's original claim. He also raises an additional claim that applicant is actually innocent. 6. Respondents would like an opportunity to respond to these new factual and legal allegations. However, undersigned counsel is currently drafting answer briefs due imminently in state court and preparing for four upcoming oral arguments in state court and, therefore, cannot immediately begin work on an amended answer in this case. 7. Undersigned counsel has conferred with applicant's attorney, Robert Levitt, and he has no opposition to the relief requested in this motion. WHEREFORE, respondents respectfully request permission to respond by October 13, 2006, to the Amended Petition Pursuant to 28 U.S.C. Section 2254.

JOHN W. SUTHERS Attorney General

s/ Cheryl Hone CHERYL HONE* Assistant Attorney General Appellate Division Criminal Justice Section Attorneys for Respondents 2

Case 1:04-cv-01072-ZLW-BNB

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1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-3134 *Counsel of Record

AG ALPHA: AG File:

DAXX GZEW \\S_DOL_2\DATA\AP\APHONECZ\HABEAS\LOPEZ.JOHN.PERMRESPONDAMEND.DOC

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Case 1:04-cv-01072-ZLW-BNB

Document 91

Filed 08/15/2006

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CERTIFICATE OF SERVICE I hereby certify that on August 15, 2006, I electronically filed the foregoing UNOPPOSED MOTION TO FILE AN AMENDED ANSWER IN RESPONSE TO AMENDED PETITION PURSUANT TO 28 U.S.C. SECTION 2254 with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail address: [email protected]

s/ Cheryl Hone_____

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