Free Order - District Court of Arizona - Arizona

LMH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Cristobal Carrera-Acosta, Defendant/Movant.

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No. CR 03-1048-PHX-JAT No. CV 05-2121-PHX-JAT (MEA) ORDER

Movant, presently confined in the Federal Correctional Institution in Sheridan, Oregon, Arizona, 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. #32). He is serving a sentence of fifty one months to be followed by five years on supervised release. He challenges his conviction for importation of five kilograms of cocaine on grounds, a violation of 21 U.S.C. § 952 and § 960, on the basis that (1) the conviction is invalid because the judgment of sentence reflects 21 U.S.C. § 922 and no such subsection exists in Title 21, and (2) counsel was ineffective during plea negotiations and at sentencing. A response to the Motion will be required. Movant has also requested appointment of counsel "to perfect" his § 2255 motion. (Mot. at 7.) Appointment of counsel is mandatory pursuant to Rule 8(c) of the Rules Governing § 2255 Cases when an evidentiary hearing is required, United States v. DuarteHigareda, 68 F.3d 369 (9th Cir. 1995), and when necessary for effective discovery pursuant
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to Rule 6(a) of the Rules Governing § 2255 Cases. At this early juncture, neither are required. Appointment is also required when the complexities of the case are such that lack of counsel would equate with the denial of due process. Brown v. United States, 623 F.2d 54, 61 (9th Cir. 1980) (citing Dillon v. United States, 307 F.2d 445, 446-47 (9th Cir. 1962)). There is presently no indication that lack of counsel would result in the denial of due process. Otherwise, the court must determine whether the interests of justice require the appointment of counsel. Terrovona v. Kincheloe, 912 F.2d 1176, 1181 (9th Cir. 1990) (quoting 18 U.S.C. § 3006A(a)(2)(B)). This determination is guided by an assessment of petitioner's ability to articulate his claim, the complexity of the legal issues, and the likelihood of success on the merits. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (per curiam). Petitioner has articulated his claims well, and his motion includes a brief that describes his claims and the basis for them more than adequately. The legal issues regarding the proper title of the United States Code and the effectiveness of his counsel are not unduly complex. At this time, the Court will deny his request without prejudice to renewal should circumstances change.

IT IS THEREFORE ORDERED: (1) That the Clerk of Court shall deliver copies of the Motion (Doc. #32), and this Order to the United States Attorney for the District of Arizona; (2) That 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 constitute a waiver of the defense. Cf. Nardi v. Stewart, 354 F.3d 1134, 1140-41 (9th Cir. 2004); Morrison v. Mahoney, 399 F.3d 1042 (9th Cir. 2005). If not limited to affirmative

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defenses, the answer shall fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases; (3) That Movant may file a reply within thirty (30) days from the date of service of the answer; (4) That Movant shall serve upon the attorney for the United States a copy of every further pleading or other document submitted for consideration by the Court. Movant shall include with the original document and copy, to be filed with the Clerk of the Court, a certificate stating 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 Magistrate Judge which has not been filed with the Clerk of the Court may be disregarded by the Court; (5) That at all times during the pendency of this action, Movant shall immediately advise the Court and the United States Marshal 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. The notice shall not include any motions for any other relief. Movant shall serve a copy of the Notice of Change of Address on the United States Attorney for the District of Arizona. Failure to file a NOTICE OF CHANGE OF ADDRESS may result in the dismissal of the action for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b); (6) That aside from the two copies of the petition that must be submitted, 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 Magistrate 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; and /////// /////// /////// /////// //////
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(7) That the matter is referred to Magistrate Judge Mark E. Aspey pursuant to Local Rules of Civil Procedure 72.1 and 72.2 for further proceedings and a report and recommendation. DATED this 30th day of August, 2005.

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