Free Order - District Court of Arizona - Arizona

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_ U CLERK U S pi-8i'F1tCT i
. 3 _ DISTF1 OF ARIZONA
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7 IN THE STATES DISTRICT COURT
S FOR THE DISTRICT OF ARIZONA 1 .
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10 United States of America, _ No. CR O4-O9B7»PHX·EI-IC ·"
· 11 Plaintiff, No. CV 05-17 15-·PHX-EHC (DKD)
12 v. · ORDER ( ` V I
13 Arturo Badill-o-Franco, _ {
14 I DefendantfMovant. l _ p
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16- Movant, presently confined in the Eloy Detention Center in Eloy, Arizona., has tiled
17 a pro se Motion to Vaeate, Set Aside, or Correct Sentence by a Person in Federal Cnstody
18 pursuant to 28 U.S.C. § 2255. Movant pled guilty to transportation of illegal aliens, a .
19 violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii) and 1324 (a)(1){B)(iii). On December 6, 2004, he
120 was sentenced to a term of sixteen months, to be followed by three years on supervised
I 21 release. Inhis Motion, he raises the following grounds for relief: ·
22 (1) his Fourth Amendment rights were violated when he was stopped without
23 B TCELSOIIQ I _
(2) his counsel was ineffective by failing to present certain evidence bearing
24 on whether Movant had pnt the- a1iens’ wes at risk., and Movant could have
25 appealed OD. 118815; _
(3) his counsel gave "misrepesentation and m1sadvisement" regarding theplea,
’ 26 the possibility of trial, and rrntigattng evidence at sentencing; and
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2 - Ci" 987-EHC Document 32 Filed 06/15/2005 Page 1 gf 3
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1 (4) Movant failed to understand the plea and its consequences dud to Y
2 1 nnsadvice from his attorney. ` — _
i A memorandum attached to the Motion provides further details regarding his that #
l 3 Q counsel was ineiective at sentencine, including a contention Movant was entitled to a
U 2 two-level downward departure as. a deportable alien and a for aberrant behavior.
6 \ response to the Motion be required, _;_ _, ·
“ 8 IT IS THEREFORE ORDERED: I
' e (1) That the Clerk of Court shall deliver copies of the Motion (Doc. #24), and this
9 Order to the United States Attorney for the District of Arizona; i
` 10 I (2) That the United States Attorney for the District of Arizona shall have (60}
1; d$iys}`.&orn—'.tHe.Q.,date oifsservice which toanswer the ldotion. The United States
_ _ Attorney may tile an answer limited to relevant afiinnative defenses, including but not
F; N limited to, statute of limitations, procedural bar, or non-retroactivity. lf the answer is limited
15 to afflnnative defenses, only those portions of the record relevant to those defenses need be
16 attached to the answer. Failure to set forth an affirmative defense in an answer may `
( U 1 constitute a waiver ofthe defense. 354 F.3d 1134, 1140-4l (9th Cir.
lg l 2004); 399 F.3d 1042 (9th Cir. 2005). lfnot limited to affirmative
19 ~ defenses, the answer shall fully comply with all of the requirements of Rule 5 ofthe Rules
20 i Governing Section 2255 Cases; '
21 (3) That Movant may tile a reply within thirty (3.0) days nom the date of service of
22 I the answer; v
i (4) That Movant shall serve upon the attorney for the United States a copy of every
23 - further pleading or other document submitted for consideration by the Court. Movant shall
24 i include with the original document and copy, to boiled with the Clerk of the Court, a
l 25 \ certificate stating the date a true and correct copy of the pleading or document was mailed l
26 _ to the attorney. Any paper receivedby a District Court Iudge or Magistrate Judge which has
ig not been Bled with the Clerk of the Court may be disregarded by the Court;
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1 I (5) That at all times during the peasessy ofthisaction, Movant shall iinmedistely --
2 advise the Court and the United States Marshal of any change of address and effectiye _.
3 i date. Such notice shall be captioned “NOTICE OF CHANGE OF ADDRESS? The notice r
4 I shall contain only Mozmation pertainingto the change of address andits effective date. The
5 I notice shall not include any ntotions for any other relief I lyloyant shall serve a copy ofthe
6 I Notice of Change of Address on the United States Attorney for the District of lkrizons.
7 I Failure to file=aNO’I'lCE OF CHANGE OF ADDRESS may result in the dismissal of the
8 action for failure to prosecute pursuant to Federal Rule of Civil Pnocedure 41(ln);
9 I (6) That aside trorn the two copies of the petition that must be submitted, a clear,
10 legible copy of every pleading or other document tiled shall accompany each original
11 pleading or other document Bled with the Clerk for use by the District Judge or Magistrate
l2 I Judge to whom the case is assigned. Failure to comply with this requirement may result in
· 13 I the pleading or document being stricken without further notice to Petitioner; and
14 (7) That the matter is referred to Magistrate Judge David K. Duncan pursuant to
15 I Local Rules of Civil Procedure 72.1 and 72.2 for ilxrther proceedings and a report and _
16 nscommendation.
I 18 DATED this I Z day of ` g , 2005.
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22 i §tat¤;gliDisttict Judge
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