Free Order - District Court of Arizona - Arizona

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
TERMPSREF

BL

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. David Gil Rodriguez, Defendant/Movant.

) ) ) ) ) ) ) ) ) ) )

No. CR 04-0606-PHX-DGC No. CV 05-1807-PHX-DGC (DKD) ORDER

Movant David Gil Rodriguez, presently confined in the BSCC Airpark Unit, Big Spring, Texas, Arizona, has filed a pro se Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. The Court will require a response. I. Procedural History Movant pled guilty to possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(B)(vii). In March 2005, he was sentenced to 30 months' imprisonment and 3 years' supervised release. Movant did not directly appeal his conviction and sentence. In his Amended § 2255 motion, Movant argues that his conviction and sentence violated his constitutional rights because (1) his plea was not knowing and voluntary; (2) he did not receive a two-level downward departure based on his status as a deportable alien; and (3) he received ineffective assistance of counsel because counsel failed

28

Case 2:04-cr-00606-DGC

Document 66

Filed 07/11/2006

Page 1 of 3

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
TERMPSREF

to (a) fully inform him as to his plea, and (b) seek a downward departure for aberrant behavior (Doc. #63). Respondent will be ordered to answer the motion. II. Warnings 1. Address Changes Movant must file and serve a notice of a change of address 10 days before the move is effective, if practicable. See LRCIV 83.3(d). Movant shall not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal. 2. Copies Movant must serve Respondent, or counsel if an appearance has been entered, a copy of every document that he files. FED. R. CIV. P. 5(a). Each filing must be accompanied by a certificate stating that a copy of the filing was served. FED. R. CIV. P. 5(d). Also, Movant submit an additional copy of every filing for use by the Court. LRCIV 5.4. The Court may strike any filing that fails to comply with these requirements. 3. Possible dismissal Movant is warned that failure to timely comply with every provision of this Order, including these warnings, may result in dismissal of this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (district court may dismiss action for failure to comply with any order of the Court). IT IS ORDERED: (1) The Clerk of Court shall deliver copies of the Amended Motion (Doc. #63), and this Order to the United States Attorney for the District of Arizona. (2) The United States Attorney for the District of Arizona shall have sixty (60) days from the date of service within which to answer the Amended Motion. The United States Attorney may file an answer limited to relevant affirmative defenses, including but not limited to, statute of limitations, procedural bar, or non-retroactivity. If the answer is limited to affirmative defenses, only those portions of the record relevant to those defenses need be attached to the answer. Failure to set forth an affirmative defense in an answer may be treated as a waiver of the defense. Day v. McDonough, No. 04-1324, 2006 WL 1071410
Case 2:04-cr-00606-DGC Document 66 -2Filed 07/11/2006 Page 2 of 3

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
TERMPSREF

(U.S. Apr. 25, 2006). If not limited to affirmative defenses, the answer shall fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases. (3) Movant may file a reply within thirty (30) days from the date of service of the answer. (4) The matter is referred to Magistrate Judge David K. Duncan pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. DATED this 10th day of July, 2006.

Case 2:04-cr-00606-DGC

Document 66

-3Filed 07/11/2006

Page 3 of 3