Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
TERMPSREF

TCK

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, v. Francisco Jesus Alverez-Espinoza, Defendant/Movant.

) ) ) ) ) ) ) ) ) ) )

No. CR 04-0621-PHX-DGC No. CV 05-2527-PHX-DGC (ECV) ORDER

Movant Francisco Jesus Alverez-Espinoza,

presently confined in the Federal

Correctional Institution in Terminal Island, California, has filed a pro se Amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Doc. #24). The Court will order a response to the Amended Motion. I. Procedural History On August 23, 2004, Movant Francisco Jesus Alvarez-Espinoza was sentenced to a term of twenty-seven months to be followed by a term of three years supervised release, following his plea of guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326. On June 28, 2005, Movant was directed to file his Motion on a court-approved form (Doc. #22). On August 22, 2005, Movant filed an Amended Motion (Doc. #24). /// ///

28

Case 2:04-cr-00621-DGC

Document 25

Filed 06/26/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
TERMPSREF

II. Discussion In his § 2255 Amended Motion, Movant raises numerous grounds for relief including, inter alia, that his counsel was ineffective. Movant claims that his counsel did not properly inform him about his plea and therefore, his plea was not voluntary. Movant also contends that his counsel did not properly investigate his case and that his identity was not established beyond a reasonable doubt. The Court will order a response to the Amended Motion. III. Warnings 1. 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. 2. 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 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. 3. 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) (district court may dismiss action for failure to comply with any order of the Court). IT IS ORDERED: (1) The Clerk of Court shall deliver copies of the Amended Motion To Vacate (Doc. #24) and this Order to the United States Attorney for the District of Arizona. (2) 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
Case 2:04-cr-00621-DGC Document 25 -2Filed 06/26/2006 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
TERMPSREF

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, No. 04-1324, 2006 WL 1071410 (U.S. Apr. 25, 2006). If not limited to affirmative defenses, the answer shall fully comply with all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases. (3) Movant may file a reply within thirty (30) days from the date of service of the answer. (4) The matter is referred to Magistrate Judge Edward C. Voss 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 23rd day of June, 2006.

Case 2:04-cr-00621-DGC

Document 25

-3Filed 06/26/2006

Page 3 of 3