Free Order - District Court of Arizona - Arizona

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JWB

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Ricardo Najera-Escobar, Defendant/Movant.

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No. CR 03-1188-PHX-NVW No. CV 06-1325-PHX-NVW (JRI) ORDER

Movant, presently confined in the Big Spring Correctional Complex - Cedar Hill Unit in Big Spring, Texas, has filed an Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. # 358) in compliance with this Court's May 26, 2006 Order (Doc. # 356). The Court will require a response. I. Procedural History Movant was sentenced to a term of 84 months' imprisonment after he pleaded guilty to conspiracy to commit hostage taking, hostage taking, conspiracy to harbor illegal aliens, and harboring illegal aliens. Movant's instant § 2255 Motion contends that: (1) trial counsel was ineffective for failing to advise Movant of the consequences of his guilty plea; (2) trial counsel was ineffective for failing to present certain defenses; (3) Movant's Fourth Amendment rights were violated by an illegal search and seizure; and (4) trial counsel was

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Case 2:03-cr-01188-NVW

Document 359

Filed 06/22/2006

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ineffective for failing to show Movant the plea agreement before he pleaded guilty. The Court will require a response. II. Warnings A. 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. 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 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. C. 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 (Doc. # 358), 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 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).
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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 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 21st day of June 2006.

Case 2:03-cr-01188-NVW

Document 359

-3Filed 06/22/2006

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