Solis v. Ryan

Filing 3

ORDER that the Clerk of Court must serve a copy of the 1 Petition 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 th e Petition within 40 days of the date of service. Petitioner may file a reply within 30 days from the date of service of the answer. 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 07/06/11. (ESL)

Download PDF
1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Eliseo Solis, Jr., Petitioner, 10 11 vs. 12 Charles L. Ryan, et al., Respondents. 13 ) ) ) ) ) ) ) ) ) ) No. CV 11-1202-PHX-GMS (ECV) ORDER 14 15 Petitioner Eliseo Solis, Jr., who is confined in the Arizona State Prison Complex, 16 Cimarron Unit, in Tucson, Arizona, has filed a pro se Petition for Writ of Habeas Corpus 17 pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee. The Court will require an 18 answer to the Petition. 19 I. Petition 20 Petitioner was convicted by a jury in Maricopa County Superior Court, case 21 #CR2005-107852, of second degree murder and was sentenced to an aggravated nineteen- 22 year term of imprisonment. In his Petition, Petitioner names Charles L. Ryan as Respondent 23 and the Arizona Attorney General as an Additional Respondent. 24 25 Fourteenth Amendment right to due process was violated where his sentence was aggravated 26 by a factor that was an essential element of the offense. In Ground Two, Petitioner alleges 27 that he received the ineffective assistance of appellate counsel based on counsel’s failure to 28 TERMPSREF Petitioner raises six grounds for relief. In Ground One, Petitioner alleges that his raise the issue in Count One on appeal. In Ground Three, he alleges that his sentence was 1 unlawfully aggravated based on the presence of an accomplice when insufficient evidence 2 supported that factor. In Ground Four, he alleges that the trial court failed to consider all of 3 the mitigating factors in violation of his Fourteenth Amendment due process rights. In 4 Ground Five and Six, Petitioner alleges that he received the ineffective assistance of trial 5 counsel in violation of his Sixth Amendment rights based on failures to object to false 6 testimony or to present a witness who could have testified that Petitioner acted in self- 7 defense. The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a). 8 II. 9 Warnings A. Address Changes 10 Petitioner must file and serve a notice of a change of address in accordance with Rule 11 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other 12 relief with a notice of change of address. Failure to comply may result in dismissal of this 13 action. 14 B. Copies 15 Petitioner must serve Respondents, or counsel if an appearance has been entered, a 16 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 17 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 18 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 19 comply may result in the filing being stricken without further notice to Petitioner. 20 C. Possible Dismissal 21 If Petitioner fails to timely comply with every provision of this Order, including these 22 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 23 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 24 comply with any order of the Court). 25 IT IS ORDERED: 26 (1) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this Order 27 28 TERMPSREF on the Respondent and the Attorney General of the State of Arizona by certified mail pursuant to Rule 4, Rules Governing Section 2254 Cases. -2- 1 (2) Respondents must answer the Petition within 40 days of the date of service. 2 Respondents must not file a dispositive motion in place of an answer but may file an answer 3 limited to relevant affirmative defenses, including but not limited to, statute of limitations, 4 procedural bar, or non-retroactivity. If the answer is limited to affirmative defenses, only 5 those portions of the record relevant to those defenses need be attached to the answer. 6 Failure to set forth an affirmative defense in an answer may be treated as a waiver of the 7 defense. Day v. McDonough, 547 U.S. 198, 209-11 (2006). If not limited to affirmative 8 defenses, the answer must fully comply with all of the requirements of Rule 5 of the Rules 9 Governing Section 2254 Cases. 10 11 12 (3) Petitioner may file a reply within 30 days from the date of service of the answer. (4) This matter is referred to Magistrate Judge Edward C. Voss pursuant to Rules 13 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and 14 recommendation. 15 DATED this 6th day of July, 2011. 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?