Free Reply to Response - District Court of Arizona - Arizona

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CLYDE S. MUNSELL Attorney at Law (CA BAR 51213) 284A Third Avenue Chula Vista, CA 91910 Telephone: (619) 224-3151 Facsimile : (619) 224-6775 e-mail: [email protected] Attorney for Defendant, MANUEL A. GAMBOA Pro Hac Vice

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,) Plaintiff,

13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. MANUEL A. GAMBOA, Defendant.

CASE NO: CR04-1299-PHX-EHC ) ) DEFENDANT'S REPLY TO UNITED ) STATES ATTORNEY'S RESPONSE ) TO NOTICE OF INTENT TO CALL ) WITNESSES AT TIME OF HEARING ) ) Date: March 16, 2007 ) Time: 1:30 p.m. )

Defendant, MAUNUEL GAMBOA, by and through its attorney of record, hereby replies to the Response to Notice of Intent to Call Witnesses, as filed by the United States of America on March 13, 2007. Respectfully submitted this 14th day of March, 2007.

S/ Clyde S. Munsell Clyde S. Munsell, Esq. Attorney for Manuel Gamboa

Case 2:04-cr-01299-EHC

Document 74

Filed 03/14/2007

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MEMORANDUM OF POINTS AND AUTHORITIES Factual History

On March 13, 2007, the United States Government caused to be filed a "Response" to Movant's Notice of Intent to Call Witness at Hearing. The stated purpose of that filing, as put forth by the United States of America, through its counsel of record, is to "seek clarification" of the Court's Minute Order, dated March 6, 2007, setting for Hearing the Defendant's Motion to Set Aside Plea; Strike Indictment; Alternatively to Correct Sentence; Waive Subsequent and Superceding Indictment and Plea to Superceding Information; and Request for Bail Pending Hearing. The primary purpose of that Response, albeit cloaked otherwise, appears to be a Request for Continuance grounded upon a feigned belief that the Court has provided no notice to the government of the scheduling of a hearing on Defendant's Motion. As such, the United States Attorney requests that it be afforded further opportunity to supplement its Response to the

17 18 19 20 21 22 23 courtesy copy of the Motion was first presented to the United States for review and consideration 24 25 26 27 28 in advance of its filing with the Court on February 9, 2007, and the government has had the opportunity to formulate any response deemed necessary nearly six weeks in advance of the scheduled hearing date. As the docket will further reflect, the government did avail itself of that opportunity, and on February 21, 2007, choosing to limit its response to the issue of timeliness of 2 Case 2:04-cr-01299-EHC Document 74 Filed 03/14/2007 2 Page 2 of 4 underlying Motion. Provided this is an accurate interpretation of the government's request, the same should be denied in its entirety. As the Court's docket will reflect, Defendant's Motion was filed with the Court on February 9, 2007, only after face-to-face discussions with the United States Attorney's Office on January 9, 2007 failed to result in any potential disposition of the issues raised in that Motion. In fact, a

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the Motion, filed a Reply to the subject Motion. Latest assertions to the contrary, that Reply was styled exactly as such, and not characterized as a Motion to Dismiss as now alleged, and its

3 4 5 6 7 8 9 10 11 12 13 14 15 Notice of Hearing was provided on March 6, 2007. Upon receipt of such Notice, the United 16 17 18 19 20 21 22 to file an answer or other pleading within the period of time fixed by the court or to take such 23 24 25 26 27 28 other action as the judge deems appropriate.(Rule 4). The requirement of an answer or the filing of any other responsive pleading lies within the discretion of the judge.(Advisory Committee note to rule 4 of the § 2254 rules). Similarly, Rule 5, Title 28 § 2255, unlike the habeas corpus statutes, does not specifically call for a return or answer by the United States Attorney or set any time limits as to when one must be submitted. 3 Case 2:04-cr-01299-EHC Document 74 Filed 03/14/2007 3 Page 3 of 4 States attorney opted to sit idle for a period of seven days, and then "seek clarification" of the purpose of that Hearing. Under Rule 3 of that Section, there is no requirement that the United States Attorney answer the motion or otherwise move with respect to it unless so ordered by the court, and unless the matter is summarily dismissed by the Court, the judge then orders the United States Attorney Court's own review of the Motion, and unless the motion and the files and records of the case conclusively show that the Moving Party is entitled to no relief, the court then causes notice thereof to be served upon the United States attorney, grants a prompt hearing thereon, determines the issues and makes findings of fact and conclusions of law with respect thereto. Such Notice of Motion was provided to the United States attorney on February 9, 2007. failure to address the merits of the Motion served as its tacit acknowledgment by such silence of the validity of Defendant's legal challenge as now presented. II. Legal Argument Section 2255 of Title 28, and the Rules associated therewith, set out the procedure for Motions filed in accordance with that Section. In pertinent part, that procedure allows for the

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Typically, if the motion is not summarily dismissed, the general practice is for the government to file an answer to the motion as well as counter-affidavits, when appropriate. In

3 4 5 6 7 8 9 10 11 12 13 14 15 further delay and its present request should be denied in its entirety. 16 17 18 19 20 21 22 23 24 25 26 27 28 s/ Clyde S. Munsell Clyde S. Munsell Attorney for Defendant Gamboa Respectfully submitted this 14th day of March, 2007. further response could have been formulated and filed with the Court in the period following the issuance of the Minute Order dated March 6, 2007. Instead, the government submitted only a written inquiry as to the purpose of the Hearing. III. CONCLUSION The Court having requested nothing further from the government, there is no need for the instant action, the government filed its Response to the Motion on February 21, 2007, and the Court has not requested any further answer or response since setting the date for Hearing. In accordance with these provisions, such an answer is neither a requirement, nor is the same an entitlement, unless so ordered by the Court. The government availed itself of an opportunity to respond to Defendant's Motion, and did so on February 21, 2007. Presumably, a

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