Kelley v. Escapule et al

Filing 4

ORDER, the Clerk must serve a copy of the Petition 1 and this Order on the Respondent and the Attorney General of the State of Arizona; Respondents must answer 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 Bridget S Bade for further proceedings and a report and recommendation. Signed by Judge Steven P Logan on 10/30/14. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gary Thomas Kelley,

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No. CV 14-02130-PHX-SPL (BSB)

Petitioner,

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vs.

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Laura Escapule, et al.,

ORDER

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Respondents.

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Petitioner Gary Thomas Kelley, who is confined in the Arizona State Prison

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Complex-Yuma in San Luis, Arizona, has filed a pro se Petition for Writ of Habeas

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Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and has paid the $5.00 filing fee. The

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Court will require an answer to the Petition.

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I.

Petition

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Petitioner was convicted in Maricopa County Superior Court, case #CR2010-

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123572, of one count each of second degree murder and aggravated assault, and was

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sentenced to consecutive sentences totaling a 27.5-year term of imprisonment. In his

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Petition, Petitioner names Laura Escapule as Respondent and the Arizona Attorney

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General as an Additional Respondent. Petitioner raises four grounds for relief. In

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Ground One, Petitioner alleges that the Arizona Supreme Court failed to consider

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Petitioner’s state post-conviction claims, in violation of Petitioner’s Due Process rights.

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In Ground Two, Petitioner alleges that the state trial court interfered with Petitioner’s

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ability to obtain transcript excerpts and the state appellate court denied counsel to

TERMPSREF

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Petitioner, both in violation of Petitioner’s Fifth, Sixth, and Fourteenth Amendment

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rights. In Count Three, Petitioner alleges that the state trial court denied Petitioner’s Due

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Process rights by amending the indicted charge to include a charge of manslaughter, by

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giving a defective jury instruction, and by “excising its two clauses for the consideration

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of self-defense.” In Ground Four, Petitioner alleges that the state trial court improperly

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declared a mistrial, in violation of Petitioner’s Due Process rights.

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The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a).
II.

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Warnings
A.

Address Changes

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If Petitioner’s address changes, Petitioner must file and serve a notice of a change

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of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure.

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Petitioner must not include a motion for other relief with a notice of change of address.

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Failure to comply may result in dismissal of this action.

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B.

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Petitioner must serve Respondents, or counsel if an appearance has been entered, a

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copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a

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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also,

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Petitioner must submit an additional copy of every filing for use by the Court. LRCiv

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5.4. Failure to comply may result in the filing being stricken without further notice to

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Petitioner.

Copies

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C.

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If Petitioner fails to timely comply with every provision of this Order, including

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these warnings, the Court may dismiss this action without further notice. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

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for failure to comply with any order of the Court).

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....

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....

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....

TERMPSREF

Possible Dismissal

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IT IS ORDERED:
(1)

The Clerk of Court must serve a copy of the Petition (Doc. 1) and this

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Order on the Respondent and the Attorney General of the State of Arizona by certified

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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.

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Respondents must not file a dispositive motion in place of an answer but may file an

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answer limited to relevant affirmative defenses, including but not limited to, statute of

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limitations, procedural bar, or non-retroactivity. If the answer is limited to affirmative

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defenses, only those portions of the record relevant to those defenses need be attached to

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the answer. Failure to set forth an affirmative defense in an answer may be treated as a

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waiver of the defense. Day v. McDonough, 547 U.S. 198, 209-11 (2006). If not limited

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to affirmative defenses, the answer must fully comply with all of the requirements of

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Rule 5 of the Rules Governing Section 2254 Cases.

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(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 Bridget S. Bade pursuant to

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Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a

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report and recommendation.

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Dated this 30th day of October, 2014.

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Honorable Steven P. Logan
United States District Judge

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TERMPSREF

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