Free Order - District Court of Arizona - Arizona

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MDR

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff/Respondent, v. Lawrence Leon Jackson, Defendant/Movant.

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No. CR 04-358-PHX-DGC No. CV 07-1880-PHX-DGC (JRI) ORDER

Movant Lawrence Leon Jackson, who is confined in the United States Penitentiary15

Pollock in Pollock, Louisiana, filed a pro se "Motion to Vacate, Set Aside, or Correct
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Sentence by a Person in Federal Custody (28 U.S.C. § 2255)" (Doc. #132), a "Motion for
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Discovery pursuant to Rule 6 of the Federal Rules Governing § 2255" (Doc. #134), and a
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"Motion for New Trial pursuant to Fed. R. Crim. P. 33(b)(1)" (Doc. #136). The Court will
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require a response to the three motions. The Court will deny as moot Movant's Application
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to Proceed In Forma Pauperis; there are no filing fees or court costs associated with a § 2255
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proceeding. See Rule 3, Rules Governing § 2255 Proceedings, Advisory Comm. Notes
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(1976) ("There is no filing fee required of a movant under these rules.").
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I.
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Procedural History Following a jury trial, Movant was found guilty of Conspiracy to Commit Murder,

Conspiracy to Commit Aggravated Assault, Conspiracy to Commit Kidnaping, First-Degree
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Murder, Assault Resulting in Serious Bodily Injury, Kidnaping, First-Degree Murder/Felony
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Murder, Assault with a Dangerous Weapon, and four counts of Use of a Firearm in a Crime
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Case 2:04-cr-00358-DGC

Document 138

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of Violence. He was sentenced to concurrent and consecutive sentences totaling life imprisonment plus 84 months. On appeal, the Ninth Circuit Court of Appeals affirmed the convictions and sentences.1 II. Pending Motions In his § 2255 Motion, Movant contends that the trial court did not have jurisdiction over his case because, although the offenses were committed within Indian country, neither he nor the victim are Indians. He also raises multiple claims of ineffective assistance of trial and appellate counsel. He contends his trial counsel was ineffective for failing to investigate alibi witnesses and present an alibi defense, failing to interview his co-defendant and introduce his co-defendant's exculpatory testimony, eliciting evidence of Movant's prior conviction and then failing to seek a limiting instruction, failing to test DNA evidence, and failing to make the prosecutor prove that Movant was an Indian. Movant contends his appellate counsel was ineffective for failing to raise the jurisdictional issue on appeal. In his Motion for a New Trial, Movant seeks a new trial based on newly discovered evidence. Specifically, Movant contends that he now has an affidavit from his co-defendant declaring that the co-defendant stabbed the victim and that Movant was not present when the murder occurred. In his Motion for Discovery, Movant seeks discovery pursuant to Rule 6 of the Rules Governing Section 2255 Proceedings for the United States District Courts so that he can conduct DNA tests on the murder weapon and depose his co-defendant and two alibi witnesses. The Court will require a response to these three motions. .... .... III. Warnings

Movant filed a prior § 2255 Motion that was dismissed without prejudice because Movant's direct appeal was pending in the Court of Appeals.
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A.

Address Changes

Movant must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Movant must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action. B. 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 include a certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Movant must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Movant. C. Possible Dismissal

If Movant fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court). IT IS ORDERED: (1) Movant's Application to Proceed In Forma Pauperis, filed with the § 2255

Motion, is denied as moot. (2) The Clerk of Court must serve a copy of the § 2255 Motion, the Memorandum

in Support of the § 2255 Motion, the Motion for Discovery, the Motion for New Trial (Doc. ##132, 133, 134, and 136 in 04-CR-358-PHX-DGC), and this Order on the United States Attorney for the District of Arizona. (3) The United States Attorney for the District of Arizona has 60 days from the

date of service within which to answer the Motions. As to the § 2255 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
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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, 126 S. Ct. 1675, 1684 (2006). If not limited to affirmative defenses, the answer must fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases. (4) (5) Movant may file a reply within 30 days from the date of service of the answer. The matter is referred to Magistrate Jay R. Irwin 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 30th day of October, 2007.

Case 2:04-cr-00358-DGC

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