Ruelas v. Ryan et al

Filing 7

ORDER denying 4 Petitioner's Motion to Appoint Counsel; granting 5 Petitioner's Motion/Application for Leave to Proceed in forma pauperis and denying 6 Petitioner's Motion to Release. The Clerk must serve a copy of 1 Petition, 3 Supplemental Brief in Support of his Petition for Habeas Corpus, and this Order on the Respondent and the Attorney General of the State of Arizona by certified mail. Respondents must answer the Petition within 40 days of the date of service. This 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. Signed by Judge James A Teilborg on 10/5/10.(LSP)

-MEA Ruelas v. Ryan et al

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

John Raymond Ruelas, Petitioner, vs. Charles Ryan, et al., Respondents.

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No. CV 10-2058-PHX-JAT (MEA) ORDER

Petitioner John Raymond Ruelas, who is confined in the Arizona State Prison Complex-Eyman in Florence, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), a Supplemental Brief in Support of his Petition for Habeas Corpus (Doc. 3), a Motion for Appointment of Counsel (Doc. 4), an Application to Proceed In Forma Pauperis (Doc. 5), and a Motion to Release (Doc. 6). The Court will grant the Application to Proceed, require an answer to the Petition, and deny the Motion for Appointment of Counsel and Motion to Release. I. Application to Proceed In Forma Pauperis Petitioner's Application to Proceed In Forma Pauperis indicates that his inmate trust account balance is less than $25.00. Accordingly, the Application to Proceed In Forma Pauperis will be granted. See LRCiv 3.5(b). ....

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II.

Petition Petitioner was convicted in Maricopa County Superior Court, case #CR-1990-013482,

of one count of kidnaping, three counts of sexual assault, one count of robbery, and one count of aggravated assault. He was sentenced to 28-year terms of imprisonment for the kidnaping, robbery, and sexual assaults, and a 20-year term of imprisonment for the aggravated assault conviction, all six sentences to be served consecutively. In his Petition, Petitioner names Charles Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises four grounds for relief. In Ground One, he claims he was denied the right to the effective assistance of trial and appellate counsel. In Ground Two, he alleges that he was denied his right to due process, asserting that he was denied an evidentiary hearing, there was an unreasonable determination of the facts, and there was interference with his right to appeal. In Ground Three, Petitioner contends that his Sixth Amendment right to a trial by jury was violated by the trial court's imposition of the sentences, that the prohibition against double punishment was violated, and that he was denied his due process right to notice. In Ground Four, Petitioner alleges a violation of the prohibition against double punishment. Petitioner contends that he has presented all of these issues to the Arizona Court of Appeals and the issues in Grounds One and Two to the Arizona Supreme Court. The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a). III. Motion for Appointment of Counsel Petitioner seeks counsel pursuant to 18 U.S.C. § 3006A and Rule 6 of the Rules Governing Section 2254 Cases. "Indigent state prisoners applying for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a particular case indicate that appointed counsel is necessary to prevent due process violations." Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when "the interests of justice so require." 18 U.S.C. § 3006A(a)(2)(B). Petitioner has not made the necessary
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showing for appointment of counsel at this time, and, therefore, his Motion for Appointment of Counsel will be denied without prejudice. In addition, although Petitioner alleges that counsel is necessary "to make pre-hearing discovery meaningful," he has not sought to conduct discovery. This ground for appointing counsel, therefore, is premature. If, at a later date, the Court determines that counsel is necessary for effective discovery or that an evidentiary hearing is required, counsel will be appointed in accordance with Rules 6(a) and 8(c) of the Rules Governing Section 2254. IV. Motion to Release Petitioner requests that the Court "stay the further execution of sentences . . . and order his release upon his own recognizance." He contends that there are "reasonable grounds to believe that the sentences imposed may be reversed" and that his Petition is "based upon illegal imposition of sentences." It is unclear whether this Court has the authority to release a state prisoner pending the resolution of a habeas proceeding. See In re Roe, 257 F.3d 1077, 1079-80 (9th Cir. 2001). Even if this Court does have that authority, such release is "reserved for extraordinary cases involving special circumstances or a high probably of success." Land v. Deeds, 878 F.2d 318, 318 (9th Cir. 1989); see also In re Roe, 257 F.3d at 1080. Petitioner has not demonstrated that he is entitled to release under this standard and, therefore, the Court will deny the Motion to Release. V. Warnings A. Address Changes

Petitioner 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. Petitioner 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. .... ....
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B.

Copies

Petitioner must serve Respondents, 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, Petitioner 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 Petitioner. C. Possible Dismissal

If Petitioner 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) (2) (3) (4) Petitioner's Motion for Appointment of Counsel (Doc. 4) is denied. Petitioner's Application to Proceed In Forma Pauperis (Doc. 5) is granted. Petitioner's Motion to Release (Doc. 6) is denied. The Clerk of Court must serve a copy of the Petition (Doc. 1), the

Supplemental Brief in Support of his Petition for Habeas Corpus (Doc. 3), and this Order on the Respondent and the Attorney General of the State of Arizona by certified mail pursuant to Rule 4, Rules Governing Section 2254 Cases. (5) Respondents must answer the Petition within 40 days of the date of service.

Respondents must not file a dispositive motion in place of an answer but 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 2254 Cases.
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(6) answer. (7)

Petitioner may file a reply within 30 days from the date of service of the

This 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 5th day of October, 2010.

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