Free Order on Motion for Leave to File Excess Pages - 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, v. Neil Rusty Bond, Defendant/Movant.

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No. CR 03-974-PHX-DGC No. CV 08-77-PHX-DGC (CRP) ORDER

I.

Background After a jury trial, Movant Neil Rusty Bond, who is confined in the Federal

Correctional Institution-La Tuna (FCI-La Tuna) in Anthony, Texas, was convicted of Theft of Government Property and Social Security Fraud in violation of 18 U.S.C. § 641 and 42 U.S.C. § 408(a)(4). He was sentenced to concurrent, 18-month terms of imprisonment, to be followed by 2 years on supervised release. Movant appealed his convictions, and the Ninth Circuit Court of Appeals affirmed (Doc. #255). On January 15, 2008, Movant filed a pro se Petition for Writ of Habeas Corpus under 28 U.S.C. § 2255. In a March 5, 2008 Order, the Court denied the Motion because it was not filed on the court-approved form. The Court gave Movant 30 days to file an amended motion on the court-approved form. On March 26, 2008, Movant filed a Motion that sought, among other things, an extension of time to file his amended § 2255 motion. In an April 25, 2008 Order, the Court granted Movant's request for an extension of time to file his amended § 2255 motion. The
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Court gave Movant 60 days from the filing date of the Order to file an amended motion that complied with the Order and the Court's March 5, 2008 Order. On May 9, 2008, Movant filed a "Motion to Leave by Exceeding Page Limit of Movant's Amended New 2255 Petition" (Doc. #300) and lodged an Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Doc. #301). II. Motion to Exceed Page Limit In his Motion to Exceed the Page Limit, Movant seeks an extension of the 17-page limitation, claiming that his Amended § 2255 Motion is 20 pages long and he was unable to further condense it. The Court will grant Movant's Motion to Exceed the Page Limit. The Court will direct the Clerk of Court to file the lodged Amended § 2255 Motion. III. Amended § 2255 Motion In his Amended § 2255 Motion, Movant raises seven grounds for relief: (1) he was denied due process, (2) there was a lack of subject matter jurisdiction, (3) he received ineffective assistance of counsel, (4) plain errors occurred, (5) a variety of abuses of discretion occurred, (6) there was prosecutorial misconduct, and (7) there were "Brady Evidence and Materials" violations. The Court will require that the Government file a response to the Amended § 2255 Motion. IV. Warnings 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
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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 "Motion to Leave by Exceeding Page Limit of Movant's Amended

New 2255 Petition" (Doc. #300 in CR 03-974-PHX-DGC) is granted. (2) The Clerk of Court must file the lodged Amended § 2255 Motion (Doc. #301

in CR 03-974-PHX-DGC). (3) The Clerk of Court must serve a copy of the Amended § 2255 Motion (Doc.

#301 in CR 03-974-PHX-DGC) and this Order on the United States Attorney for the District of Arizona. (4) The United States Attorney for the District of Arizona has 60 days from the

date of service within which to answer the Amended § 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 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. (5) Movant may file a reply within 30 days from the date of service of the answer.

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(6)

This matter is referred to Magistrate Judge Charles R. Pyle 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 May, 2008.

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