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

LMH

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Gregorio M artinez-M iranda, Defendant/M ovant.

) ) ) ) ) ) ) ) ) ) )

No. CR 04-0345-PHX-EHC No. CV 06-0920-PHX-EHC (BPV) ORDER

M ovant Gregorio M artinez -M iranda, presently confined in the California City Correctional Center in California City, California, has filed a pro se M otion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U .S.C. § 2255. On October 22, 2004, M ovant was sentenced to a term of 87 moths after he pled guilty to illegal re-entry after removal, a violation of 8 U.S.C. § 1326. On July 14, 2005, his conviction was affirmed on appeal. See Dkt. #24. M ovant now challenges his conviction on three grounds: (1) sentencing calculation errors regarding the proper criminal history category; (2) his plea was not consistent with his sentence; and (3) counsel was ineffective by not adequat ely rep resenting M ovant's interests in the terms of the plea and regarding t he calculation of his sentence under the guideline. A response to the M otion will be required.

28

Case 2:04-cr-00345-EHC

Document 27

Filed 04/12/2006

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

IT IS THEREFORE ORDERED THAT: (1) The Clerk of Court shall deliver copies of t he M ot ion (Doc. #25), and this Order to the United States Attorney for the District of Arizona. (2) T he United States Attorney for the District of Arizona shall have sixty (60) days from the date of service w it hin which to answer the M otion. The United States Attorney may file an answer limited to relevant affirmat ive defenses, including but not limited to, statute of limitations, procedural bar, or non-retroactivity. If t he 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 fort h an affirmative defense in an answer may

constitute a waiver of the defense. Cf. N ardi v. Stewart, 354 F.3d 1134, 1140-41 (9th Cir. 2004); M orrison v. M ahoney, 399 F.3d 1042 (9th Cir. 2005). If not limit ed t o affirmative defenses, the answer shall fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases. (3) M ovant may file a reply within thirty (30) days from the date of service of t he answer. (4) M ovant shall serve upon the attorney for the United States a copy of every M ovant

further pleading or other document submitted for consideration by the Court.

shall include with the original document and copy , t o be filed with the Clerk of the Court, a certificate stat ing the date a true and correct copy of the pleading or document was mailed to the attorney . Any paper received by a District Court Judge or M agistrate Judge

which has not been filed with the Clerk of the Court may be disregarded by the Court. (5) At all t imes during the pendency of this action, M ovant shall immediately advise the Court and the United States M arshal of any change of address and its effective date. Such notice shall be captioned " NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. notice shall not include any motions for any other relief. The

M ovant s hall serve a copy of

t he N ot ice of Change of Address on the United States Attorney for the District of Arizona.

Case 2:04-cr-00345-EHC

Document 27

-2Filed 04/12/2006

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

Failure to file a NOTICE OF CH A N G E OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). (6) Aside from the two copies of the petition that must be submit t ed, a clear, legible copy of every pleading or other document filed shall accompany each original pleading or other document filed with the Clerk for use by the District Judge or M agistrate Judge to whom the case is assigned. Failure to comply with this requirement may result in the

pleading or document being stricken without further notice to Petitioner. (7) The matter is referred to M agistrate J udge Bernardo P. Velasco pursuant to

Local Rules of Civil Procedure 72.1 and 72.2 for further proceedings and a report and recommendation. DATED this 11th day of April, 2006.

Case 2:04-cr-00345-EHC

Document 27

-3Filed 04/12/2006

Page 3 of 3