Free Order - 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/Respondent, v. Nicholas Pablo, Defendant/Movant.

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No. CR 03-764-PHX-JAT No. CV 07-2094-PHX-JAT (JCG) ORDER

Movant Nicholas Pablo, who is confined in the United States Penitentiary-Beaumont
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in Beaumont, Texas, filed a pro se "Motion to Vacate, Set Aside, or Correct Sentence by a
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Person in Federal Custody (28 U.S.C. § 2255)" (Doc. #1234) and a supporting Memorandum
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of Law (Doc. #1235).
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I.
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Procedural History Following a jury trial, Movant was convicted of Conspiracy to Commit Murder and

was sentenced to imprisonment for life. Movant appealed, and the Ninth Circuit Court of
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Appeals affirmed (Doc. #1171).
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II.
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Section 2255 Motion In his Motion, Movant raises six grounds for relief. In Ground One, he alleges that

he received ineffective assistance of counsel because his attorney failed to call a defense
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witness that would have raised reasonable doubt as to the credibility of the "government's
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cooperating co-conspirators." In Grounds Two, Three, and Five, Movant claims his due
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process righters were violated because the government intentionally used the perjured
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TERMPSREF

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testimony of three witnesses to obtain a conviction. In Ground Four, Movant asserts a due process violation because the government intentionally used perjured testimony to obtain a grand jury indictment. In Ground Six, Movant claims he received ineffective assistance of counsel because his attorney waived Movant's right to a speedy trial and requested a trial continuance that "allowed the government the need[ed] time to fabricate a trial theory to conf[o]rm with the indictment." The Court will require a response to the § 2255 Motion. III. 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 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) The Clerk of Court must serve a copy of the § 2255 Motion (Doc. #1234 in 03-

764-PHX-JAT), the supporting Memorandum of Law (Doc. #1235), and this Order on the United States Attorney for the District of Arizona.
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(2)

The United States Attorney for the District of Arizona has 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, 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. (3) (4) Movant may file a reply within 30 days from the date of service of the answer. The matter is referred to Magistrate Judge Jennifer C. Guerin 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 4th day of December, 2007.

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