De Los Rios # 220280 v. Ryan et al

Filing 4

ORDER Ground Three of the Petition is dismissed. (Doc. 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. Respondents must answer Grounds One and Two of the 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 David K. Duncan for further proceedings and a report and recommendation. Signed by Judge G Murray Snow on 5/16/12. (DMT)

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1 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul Bryan De Los Rios, 10 Petitioner, 11 vs. 12 Charles Ryan, et al., 13 Respondents. 14 ) ) ) ) ) ) ) ) ) ) No. CV 12-0839-PHX-GMS (DKD) ORDER 15 Petitioner Paul Bryan De Los Rios, who is confined in the Arizona State Prison 16 Complex, Rynning Unit, in Florence, Arizona, has filed a pro se Petition for Writ of Habeas 17 Corpus pursuant to 28 U.S.C. § 2254. He has paid the $5.00 filing fee. The Court will 18 require an answer to Grounds One and Two of the Petition and dismiss Ground Three. 19 I. Petition 20 Petitioner was convicted by a jury in Maricopa County Superior Court, case 21 #CR2001-15225, of first degree murder and two counts each of kidnapping and child abuse. 22 Petitioner was sentenced to a life without the possibility of parole for the murder and lesser 23 sentences for the other offenses. Petitioner’s direct appeal was denied. (Doc. 1-1 at 107.) 24 The Arizona Supreme Court denied his petition for review on June 30, 2009. (Doc. 1-2 at 25 15.) On July 27, 2007, the Superior Court denied Petitioner’s petition for post-conviction 26 relief. (Id. at 45.) The Arizona Court of Appeals denied Petitioner’s petition for review on 27 March 28, 2012. (Id. at 104.) 28 TERMPSREF In his Petition, Petitioner names Charles Ryan as Respondent and the Arizona 1 Attorney General as an Additional Respondent. Petitioner raises three grounds for relief. 2 In Ground One, Petitioner alleges that he received the ineffective assistance of counsel in 3 several ways in violation of his federal constitutional rights and violation of the right to be 4 indicted by the grand jury, double jeopardy, due process, and equal protection. In Ground 5 Two, he alleges that counsel failed to provide him with complete copies of discovery in 6 violation of his due process and equal protection rights. In Ground Three, Petitioner alleges 7 that the Arizona Department of Corrections has denied him use of a law library in violation 8 of due process and equal protection. 9 Ground Three will be dismissed as discussed below. The Court will require 10 Respondents to answer Grounds One and Two of the Petition. 28 U.S.C. § 2254(a). 11 II. Ground Three 12 In Ground Three, Petitioner asserts that he has been denied access to a law library. 13 Petitioner may not seek relief regarding conditions of confinement, such as denial of access 14 to the courts, pursuant to § 2254. Instead, he must file an action pursuant to 42 U.S.C. 15 § 1983. See Nelson v. Campbell, 541 U.S. 637, 643 (2004) (“constitutional claims that 16 merely challenge the conditions of a prisoner’s confinement, whether the inmate seeks 17 monetary or injunctive relief, fall outside [the] core [of habeas relief] and may be brought 18 pursuant to § 1983”); Muhammad v. Close, 540 U.S. 749, 750 (2004) (“Challenges to the 19 validity of any confinement or to particulars affecting its duration are the province of habeas 20 corpus . . . ; requests for relief turning on the circumstances of confinement may be presented 21 in a § 1983 action.”); Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (citing Preiser v. 22 Rodriguez, 411 U.S. 475, 484 (1973) (a civil rights action is the proper method to challenge 23 conditions of confinement)). Because Petitioner seeks relief as to his conditions of 24 confinement in Ground Three, that Ground will be dismissed. 25 III. Warnings 26 27 Petitioner must file and serve a notice of a change of address in accordance with Rule 28 TERMPSREF A. Address Changes 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other -2- 1 relief with a notice of change of address. Failure to comply may result in dismissal of this 2 action. 3 B. 4 Petitioner must serve Respondents, or counsel if an appearance has been entered, a 5 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 6 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 7 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 8 comply may result in the filing being stricken without further notice to Petitioner. 9 C. Copies Possible Dismissal 10 If Petitioner fails to timely comply with every provision of this Order, including these 11 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 12 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to 13 comply with any order of the Court). 14 IT IS ORDERED: 15 (1) Ground Three of the Petition is dismissed. (Doc. 1.) 16 (2) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this Order 17 on the Respondent and the Attorney General of the State of Arizona by certified mail 18 pursuant to Rule 4, Rules Governing Section 2254 Cases. 19 (3) Respondents must answer Grounds One and Two of the Petition within 40 days 20 of the date of service. Respondents must not file a dispositive motion in place of an answer 21 but may file an answer limited to relevant affirmative defenses, including but not limited to, 22 statute of limitations, procedural bar, or non-retroactivity. If the answer is limited to 23 affirmative defenses, only those portions of the record relevant to those defenses need be 24 attached to the answer. Failure to set forth an affirmative defense in an answer may be 25 treated as a waiver of the defense. Day v. McDonough, 547 U.S. 198, 209-11 (2006). If not 26 limited to affirmative defenses, the answer must fully comply with all of the requirements 27 of Rule 5 of the Rules Governing Section 2254 Cases. 28 TERMPSREF (4) Petitioner may file a reply within 30 days from the date of service of the -3- 1 2 answer. (5) This matter is referred to Magistrate Judge David K. Duncan pursuant to Rules 3 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and 4 recommendation. 5 DATED this 16th day of May, 2012. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -4-

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