Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. John Derrick Martin, Defendant/Movant.

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No. CR-02-0155-PHX-JAT No. CV-06-2302-PHX-JAT (BPV) ORDER

Movant John Derrick Martin, confined in the Federal Correctional Institution in
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Adelanto, California, and represented by counsel Cynthia M. Fort,1 has filed a Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (28 U.S.C. § 2255).

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The Court will require a response.
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I. Procedural History
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Following a jury trial, Movant was convicted of conspiracy to possess cocaine with
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intent to distribute, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and attempted possession
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of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 846, 841(a)(1) and
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(b)(1)(A)(ii). By Judgment filed October 16, 2003 (Doc. # 247 of CR- 02-0155-PHX-JAT),
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TERMPSREF
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Admitted pro hac vice September 28, 2006 (Doc. #3 CV-06-2302-PHX-JAT (BPV)).

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Case 2:02-cr-00155-JAT

Document 320

Filed 10/05/2006

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the Court sentenced Movant to a 240-month term of imprisonment followed by 10 years on supervised release. II. Motion In his Motion, Movant alleges that he received ineffective assistance of counsel, and he raises three grounds for relief. In Ground One, Movant alleges that he was denied effective assistance of counsel because his attorney failed to move to suppress the identification procedure used to identify Movant as the co-conspirator known as "Rabbit." In Ground Two, Movant alleges that he was denied effective assistance of counsel because his attorney failed to move to sever his trial from that of the co-defendants. In Ground Three, Movant alleges that he was denied effective assistance of counsel because his attorney failed to investigate the location where Movant was supposed to have been involved in a drug delivery and such investigation was essential to cross-examination of the agents who identified him. The Court will require a response to the Motion. IT IS ORDERED: (1) The Clerk of Court must serve copies of the Motion and Memorandum of Law (Doc. # 316 of CR- 02-0155-PHX-JAT) and this Order on the United States Attorney for the District of Arizona. (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.
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(3) Movant may file a reply within 30 days from the date of service of the answer. (4) The matter is referred to Magistrate Judge Bernardo P. Velasco 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 October, 2006.

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