Free Order - District Court of Arizona - Arizona

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SVK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Steve Cordell Dobson, Defendant/Movant.

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No. CR-02-0155-PHX-JAT No. CV-06-1539-PHX-JAT (MEA) ORDER

Movant Steve Cordell Dobson, confined in the Federal Correctional Institution, Memphis, Tennessee, 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. The Court will require a response. I. Procedural History On December 12, 2002, after a jury trial, Movant was found guilty of two Counts: conspiracy to possess 5 kilograms or more of cocaine with intent to distribute in violation of 21 U.S.C. § 846 and attempt to possess 5 kilograms or more of cocaine with intent to distribute in violation of 21 U.S.C.§ 846. On November 19, 2003, he was sentenced to 120 months to be followed by 5 years on supervised release. Movant alleges that he appealed to

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the Ninth Circuit and that his conviction and sentence were affirmed on December 27, 2005.1 He further alleges that, other than his direct appeal, he has filed no other petitions, applications, or motions with respect to this judgment in any federal court. On June 12, 2006, Movant filed the present Motion seeking to vacate his conviction and sentence. Movant raises six grounds for relief. In Ground One, Movant alleges that he received ineffective assistance of trial and appellate counsel because trial counsel refused to permit Movant to testify at trial, counsel refused to object on the issue of improper jury communication and refused to file a motion for a new trial. In Ground Two, he alleges there was insufficient evidence to prove that Movant engaged in conduct constituting a substantial step toward possession or to prove intent to distribute. In Ground Three, Movant claims there was insufficient evidence of the existence of a conspiracy. In Ground Four, Movant claims that the prosecution failed to disclose evidence of a video tape that would have established Movant's lack of knowledge regarding the drugs. In Ground Five, Movant alleges that the prosecutor had an improper communication with a juror and the trial court failed to determine the nature of a communication. In Ground Six, Movant claims that the two counts for which he was convicted are a single crime, and thus his conviction violates the Double Jeopardy Clause. The Court will require a response to the Motion. 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.

The Judgment of the Ninth Circuit affirming the Judgment of the District Court was filed and entered November 23, 2004. However, the mandate was withheld and not issued until September 27, 2005. (Doc. # 303, 02-CR-0155-PHX-JAT.) Case 2:02-cr-00155-JAT Document 311 -2Filed 08/01/2006 Page 2 of 4

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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 must 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) (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 deliver copies of the Motion (02-CR-0155-PHX-JAT, Doc. # 306), Memorandum (02-CR-0155-PHX-JAT, Doc. # 307), and this Order to 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. (3) Movant may file a reply within 30 days from the date of service of the answer. /// /// ///
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(4) The matter is referred to Magistrate Judge Mark E. Aspey 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 31st day of July, 2006.

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