Free Order - District Court of Arizona - Arizona

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JDN

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Saul Bueno-Lopez, Defendant/Movant.

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No. CR 04-0108-PHX-MHM No. CV 05-4204-PHX-MHM (VAM) ORDER

Movant, presently confined in the Federal Correctional Complex - Victorville, in Adelanto, California, has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (dkt. 95). The Court will require a response. A. Procedural History On December 20, 2004 Movant pled guilty to possession of a firearm during and in relation to a crime of violence, a violation of 18 U.S.C. § 924(c). He was sentenced by this Court to a term of 90 months. His § 2255 Motion was signed on December 18, 2005. In his Motion Movant made reference of his intent to file an Amended Motion, therefore, the Court provided 30 days in which to file an Amended Motion (dkt. 96). No Amended Motion has been filed.

In his December 18, 2005 Motion Movant raises four grounds for relief:

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(1) ineffective assistance of trial counsel constituting a violation of Movant's Fifth and Sixth Amendment rights; (2) violation of Rule 32, Fed. R. Civ. P., in that trial counsel was ineffective and the sentence was based on inaccurate information; (3) violation fo Rule 32(c)(3)(D), Fed. R. Civ. P., by trial counsel; and (4) ineffective assistance of trial counsel at all stages of proceedings. B. 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 must 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 Motion (dkt. 95), 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 Motion. The United States Attorney may file an answer limited to relevant affirmative defenses, including but not limited to, statute
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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 (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 Virginia A. Mathis 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 14th day of June, 2006.

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