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. Philip James Chillemi, Defendant/Movant.

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No. CR-03-0917-PHX-PGR No. CV-07-0430-PHX-PGR (JRI) ORDER

Movant Philip James Chillemi, confined in the United States Penitentiary in Inez, Kentucky, filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. The Court will require a response to the Motion. I. Procedural History and Motion On August 16, 2004, following a jury trial and conviction for Bank Robbery, Movant was sentenced to a 240-month term of imprisonment followed by 3 years on supervised release. Movant raises three grounds for relief in his Motion. In Ground One, Movant alleges that he was denied effective assistance of counsel because his attorney failed to conduct an adequate pretrial investigation and failed to raise the issue of Movant's competence to stand trial. In Ground Two, Movant alleges that he was denied effective assistance of counsel through the cumulative errors of counsel throughout the trial. In Ground Three, Movant

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alleges that his conviction was outside the scope of Title 18 because Title 18 was "never enacted into positive law" and so there is "a question of the constitutionality of the conviction and also the jurisdiction of the conviction." 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. 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 serve copies of the Motion (Doc. # 82 in CR 03-

0917-PHX-PGR) 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
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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 Jay R. Irwin 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 13th day of March, 2007.

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