Dudley #112183 v. Ryan et al

Filing 10

ORDER: Petitioner's Motion for Blank Certificate (Doc. 7 ) and Motion to Submit Page Eleven of Petition (Doc. 9 ) are denied as moot. The Clerk of Court must serve a copy of the Petition (Doc. 1 ) and this Order on the Respondent and the A ttorney General of the State of Arizona by certified mail pursuant to Rule 4, Rules Governing Section 2254 Cases. This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report and recommendation. See document for further details. Signed by Senior Judge Stephen M McNamee on 5/12/2015.(REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Damian Dudley, 10 Petitioner, 11 12 No. CV 15-0471-PHX-SMM (JZB) v. ORDER Charles L. Ryan, et al., 13 Respondents. 14 15 On March 13, 2015, Petitioner Damian Dudley, who is confined in the Arizona 16 State Prison Complex-Lewis, filed a pro se Petition for Writ of Habeas Corpus pursuant 17 to 28 U.S.C. § 2254 (Doc. 1) and paid the $5.00 filing fee, but he did not sign the 18 Petition. 19 certification. On May 6, 2015, Petitioner filed a Motion for Blank Certificate (Doc. 7), a 20 Declaration in Support of his Motion for a Blank Certificate (Doc. 8), and a Motion to 21 Submit Page Eleven of Petition (Doc. 9) and attached a signed copy of the Petition for 22 Writ of Habeas Corpus form’s signature page. The Court will accept the signed copy of 23 the Petition form’s signature page, deny the Motions as moot, and require an answer to 24 the Petition. 25 I. In an April 27, 2015 Order, the Court gave Petitioner 30 days to file a Petitioner’s Motions 26 In his Motion for Blank Certificate (Doc. 7), Petitioner states that he did not 27 receive the Certificate form, which was supposed to be included with the Court’s April 28 27, 2015 Order, and requests that a Certificate form be sent to him. In his Motion to TERMPSREF 1 Submit Page Eleven of Petition (Doc. 9), Petitioner asks the Court to accept the attached, 2 signed copy of page eleven of the Petitioner for Writ of Habeas Corpus pursuant to 28 3 U.S.C. § 2254 form’s signature page in lieu of the Certificate form. The Court will 4 accept the provided signature page and will deny Petitioner’s motions as moot. 5 II. Petition 6 Petitioner was convicted in Maricopa County Superior Court, case #2007-128171, 7 of one count of robbery, one count of kidnapping, and one count of aggravated assault 8 and was sentenced to concurrent terms of imprisonment, the longest of which was 9 seventeen years. Petitioner’s conviction and sentence was affirmed by the Arizona Court 10 of Appeals on March 6, 2012, and the Arizona Supreme Court denied his petition for 11 review on July 24, 2012. On October 22, 2012, Petitioner filed a petition for post- 12 conviction relief, the Maricopa County Superior Court denied it, and the Arizona Court 13 of Appeals granted review, but denied relief. In his Petition, Petitioner names Charles L. 14 Ryan as Respondent and the Arizona Attorney General as an Additional Respondent. 15 Petitioner raises twelve grounds for relief: 16 1) Petitioner’s indictment violated the Sixth Amendment because it did not allege venue; 2) there were numerous errors that could not have been harmless; 3) the prosecutor failed to properly show that the admission of Petitioner’s Massachusetts prior conviction for use as a sentencing enhancement did not violate his Sixth Amendment rights; 4) Petitioner’s Sixth and Fourteenth Amendment rights were violated when the prosecutor referred to facts that were not proven; 5) Petitioner’s constitutional rights were violated because the trial transcripts are not accurate; 6) Petitioner’s Fourteenth Amendment rights were violated because Arizona’s kidnapping statutes are 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -2- vague and ambiguous; 1 7) Petitioner’s Fourth Amendment rights were violated when his preliminary hearing date was vacated; 8) Petitioner received ineffective assistance of Rule 32 counsel when counsel failed to raise claims of ineffective assistance of trial and appellate counsel in his post-conviction relief proceedings; 9) Petitioner received ineffective assistance of trial counsel when counsel failed to “accompany Petitioner in a free talk with the Phoenix Police,” failed to interview one of the State’s witnesses, and “failed to object to [the] Court’s failure to rule on [a] motion before Court”; 10) Petitioner received ineffective assistance of counsel when counsel “failed to object to the lack of venue in the indictment”; 11) Petitioner received ineffective assistance of appellate counsel in violation of the Fourteenth Amendment when counsel failed to “challenge the State[’]s case [and] failed to allege pertinent issues”; and 12) 2 Petitioner received ineffective assistance of trial counsel in violation of the Sixth Amendment when trial counsel failed to “enter[] into an agreement with the County Attorney’s office without informing the Petitioner”; failed to request a “mitigation specialist”; and failed to object to aggravated sentencing. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a). 22 23 24 25 26 27 28 TERMPSREF 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. -3- 1 B. 2 Because Petitioner is currently confined in an Arizona Department of Corrections 3 unit subject to General Order 14-17, Petitioner is not required to serve Respondents with 4 a copy of every document he files or to submit an additional copy of every filing for use 5 by the Court, as would ordinarily be required by Federal Rule of Civil Procedure 5 and 6 Local Rule of Civil Procedure 5.4. If Petitioner is transferred to a unit other than one 7 subject to General Order 14-17, he will be notified of the requirements for service and 8 copies for the Court that are required for inmates whose cases are not subject to General 9 Order 14-17. Copies 10 C. 11 If Petitioner fails to timely comply with every provision of this Order, including 12 these warnings, the Court may dismiss this action without further notice. See Ferdik v. 13 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action 14 for failure to comply with any order of the Court). 15 IT IS ORDERED: 16 17 18 (1) Possible Dismissal Petitioner’s Motion for Blank Certificate (Doc. 7) and Motion to Submit Page Eleven of Petition (Doc. 9) are denied as moot. (2) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this 19 Order on the Respondent and the Attorney General of the State of Arizona by certified 20 mail pursuant to Rule 4, Rules Governing Section 2254 Cases. 21 (3) Respondents must answer the Petition within 40 days of the date of service. 22 Respondents must not file a dispositive motion in place of an answer but may file an 23 answer limited to relevant affirmative defenses, including but not limited to, statute of 24 limitations, procedural bar, or non-retroactivity. If the answer is limited to affirmative 25 defenses, only those portions of the record relevant to those defenses need be attached to 26 the answer. Failure to set forth an affirmative defense in an answer may be treated as a 27 waiver of the defense. Day v. McDonough, 547 U.S. 198, 209-11 (2006). If not limited 28 to affirmative defenses, the answer must fully comply with all of the requirements of TERMPSREF -4- 1 2 3 4 Rule 5 of the Rules Governing Section 2254 Cases. (4) Petitioner may file a reply within 30 days from the date of service of the answer. (5) This matter is referred to Magistrate Judge John Z. Boyle pursuant to Rules 5 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a report 6 and recommendation. 7 DATED this 12th day of May, 2015. 8 9 10 11 Honorable Stephen M. McNamee Senior United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TERMPSREF -5-

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