Thomas v. Franco et al

Filing 3

ORDER The Clerk of Court must serve a copy of the Petition 1 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. Respondents must answer the Petition within 40 days of the date of service. This matter is referred to Magistrate Judge Edward C. Voss for further proceedings and a report and recommendation. Signed by Judge G Murray Snow on 11/1/10. (DMT)

-ECV Thomas v. Franco et al

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Robert Thurman Thomas, Petitioner, vs. James Franco, et al., Respondents.

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No. CV 10-2279-PHX-GMS (ECV) ORDER

Petitioner Robert Thurman Thomas, who is confined in the Arizona State Prison Complex-Yuma in San Luis, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and has paid the $5.00 filing fee. The Court will require an answer to the Petition. I. Petition Petitioner was convicted in Maricopa County Superior Court, case #CR2007-161220001DT, of first-degree burglary and was sentenced to a 15-year term of imprisonment. Petitioner states that he entered into a plea agreement for this enhanced sentence. In his Petition, Petitioner names James Franco as Respondent and the Arizona Attorney General as an Additional Respondent. Petitioner raises three grounds for relief. In Ground One, Petitioner alleges that he was denied his Sixth Amendment right to trial by jury because his sentence was enhanced by aggravating factors that were not proven beyond a reasonable doubt. In Ground Two,

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Petitioner asserts that he received the ineffective assistance of counsel because his attorney did not object to the "misuse" of aggravating factors. In Ground Three, he claims the trial court illegally found the two aggravating factors which increased Petitioner's sentence above the presumptive sentence. Petitioner alleges that he presented these grounds to the Arizona Court of Appeals. The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a). II. 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. 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) The Clerk of Court must serve a copy of the Petition (Doc. 1) 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.

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(2)

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. (3) answer. (4) This matter is referred to Magistrate Judge Edward C. Voss pursuant to Rules Petitioner may file a reply within 30 days from the date of service of the

72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. DATED this 1st day of November, 2010.

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