Free Order - District Court of Arizona - Arizona

SRM

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 United States of America, Plaintiff/Respondent -vsJose Angel Romero-Lopez, Defendant/Movant CR-04-1008-PHX-JAT CV-06-1017-PHX-JAT (JI) ORDER

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

Movant, following his conviction in the United States District Court for the District of Arizona, filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on April 11, 2006 (#24). On September 28, 2006, Respondent filed its Response (#28), attacking the merits of the Motion. Movant filed a Reply on October 16, 2006 (#29). Movant's Motion asserts two grounds for relief: (A) Movant's plea agreement was coerced by counsel's representation that Movant would receive a sentence of 120 months if he did not accept the plea agreement; and (B) counsel was ineffective for failing to explain the plea agreement, or otherwise adequately advise Movant of his options. In his Reply (#29), Movant asserts a variety of additional claims, including: (1) denial of his Fifth Amendment Right to prosecution on a grand jury indictment; (2) that any waiver of that right was unknowingly made; (3) counsel was ineffective for failing to assert Movant's right to an indictment and for failing to raise the absence of an allegation of a prior conviction in the information; (4) counsel was ineffective for waiving Movant's right to appeal; (5) Movant's waiver of appeal rights was not knowingly made; (6) Movant was improperly sentenced under the United States Sentencing Guidelines, as determined by United States v. Booker, 125 S.Ct. 738 (2005), because Movant's sentence was derived from an offense level based on facts not proven to a jury or admitted by Movant; (7) Movant's rights under the Vienna Convention Treaty Act, Article 36 were denied when he was not advised of his right to report to his
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Embassy/Consular office. "As a general rule, arguments raised for the first time in a reply brief are waived." Jennings v. U.S., 461 F.Supp.2d 818, 833 (S.D.Ill. 2006) (denying claims raised for first time in reply on § 2255 motion). Accordingly, absent a proper amendment to the motion, the Court will not entertain claims not raised in the original Motion to Vacate. Still, Movant's effort to raise these claims should not be dismissed out-of-hand. See United States v. Ten Thousand Dollars ($10,000.00) in U.S. Currency, 860 F.2d 1511, 1513 (9th Cir.1988) ( "We have consistently held in this circuit that courts should liberally construe the pleadings and efforts of pro se litigants, particularly `where highly technical requirements are involved.'") (quoting Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir.1984)). If Movant intends to raise these

additional claims, then he must do so by proper amendment, thereby allowing Respondent an opportunity to respond. Fed.R.Civ.P. 15(a) provides for amendments to pleadings, and is applicable to amendments to motions under 28 U.S.C. § 2255. U.S. v. Thomas, 221 F.3d 430 (3rd Cir. 2000). Because Respondents have already answered, Movant must seek leave to amend his motion. Local Rule of Civil Procedure 15.1(a)(1) requires that "[a] party who moves for leave to amend a pleading must attach a copy of the proposed amended pleading as an exhibit to the motion, which shall indicate in what respect it differs from the pleading which it amends." Local Rule of Civil Procedure 15.1(a)(2) requires that Plaintiff "must lodge with the Clerk of Court an original of the proposed amended pleading." Further, Local Rule of Civil Procedure 15.1(a)(2) provides that an "amended pleading is not to incorporate by reference any part of the preceding pleading, including exhibits." Further, Local Rules of Civil Procedure 3.4 and 3.5 require that prisoners' complaints and habeas petitions be "on forms approved by the Court and in accordance with the instructions provided with the forms." Movant will be given an opportunity to seek leave to amend his Motion to Vacate. Should Movant desire the Court to rule on the claims in his original Motion to Vacate, he need not seek leave to amend. IT IS THEREFORE ORDERED that Movant shall have twenty days from the filing
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of this Order to file a motion to amend his Motion to Vacate. IT IS FURTHER ORDERED that the Clerk of the Court shall forward to Movant an approved form of Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255.

DATED: February 15, 2007
S:\Drafts\OutBox\04-1008-24o Order 07 02 05 re Amendment to Motion.wpd

_____________________________________ JAY R. IRWIN United States Magistrate Judge

Case 2:04-cr-01008-JAT

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