Amis v. Ryan et al

Filing 8

ORDER, the Clerk must serve a copy of the Petition 1 and this Order on the Respondents and the Attorney General of the State of Arizona; this matter is referred to Magistrate Judge James F Metcalf for further proceedings and a report and recommendation. Signed by Judge G Murray Snow on 7/22/13. (REW)

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WO

MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Richard Wiley Amis, Jr.,

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No. CV 13-8060-PCT-GMS (JFM)

Petitioner,

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vs.

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Charles L. Ryan, et al.,

ORDER

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Respondents.

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On March 25, 2013, Petitioner Richard Wiley Amis, Jr., who is confined in the

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Arizona State Prison-Central Arizona Correctional Facility in Florence, Arizona, filed a

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pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and an

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Application to Proceed In Forma Pauperis. In an April 29, 2013 Order, the Court denied

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the deficient Application to Proceed and gave Petitioner 30 days to either pay the filing

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fee or file a complete Application to Proceed In Forma Pauperis.

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On May 6, 2013, Petitioner filed a second Application to Proceed In Forma

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Pauperis. In a May 13, 2013 Order, the Court granted the second Application to Proceed

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and noted that Petitioner had not signed his Petition. The Court gave Petitioner 30 days

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to file a signed Certificate, certifying that Petitioner’s signature on the Certificate would

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serve as an original signature, under penalty of perjury, on his § 2254 Petition for

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purposes of 28 U.S.C. § 2242, Rule 2(c)(5) of the Rules Governing Section 2254 Cases,

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Rule 3.5(a) of the Local Rules of Civil Procedure, and Rule 11 of the Federal Rules of

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Civil Procedure.

TERMPSREF

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On May 16, 2013, Plaintiff submitted the signed Certificate. The Court will

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require an answer to the Petition.

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I.

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Petition
Petitioner

was

convicted

in

Yavapai

County

Superior

Court,

case

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#V1300820010293, of two counts of sexual assault, two counts of attempted child

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molestation, one count of child molestation, and one count of sexual conduct with a

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minor.

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Petitioner names Charles L. Ryan and Warden John Gay as Respondents and the Arizona

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Attorney General as an Additional Respondent. Petitioner raises three grounds for relief.

He was sentenced to a 60.25-year term of imprisonment.

In his Petition,

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In Count One, Petitioner contends that he received ineffective assistance of

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counsel, he was subjected to judicial and prosecutorial misconduct because the judge and

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prosecutor showed extreme prejudice towards him, he was convicted of a crime that

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never happened, and his plea was involuntary and constitutes cruel and unusual

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punishment. In Ground Two, he claims that his rights were violated because he was

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improperly sentenced and there was a failure to investigate. He asserts that he was

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charged with several counts relating to a single crime, that it is impossible to commit an

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attempted crime and also be charged with the completed crime, that the court abused its

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authority and multiplied one charge in order to make Petitioner sign a plea agreement,

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and that the State failed to investigate the case in a professional manner.

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In Ground Three, Petitioner claims he was subjected to judicial and prosecutorial

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misconduct and an obstruction of justice and he received ineffective assistance of

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counsel. He asserts that there was no evidence to prove he committed the crimes, the

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case was based on hearsay and there was no medical evidence to support it, his attorney

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would not speak on his behalf and did not properly investigate the case, he had “no

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chance” because of prejudice by the state and the court, and he did not have a chance

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“against a judicial system that based everything on a plea agreement to save money.”

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TERMPSREF

Petitioner asserts that he has presented these issues to the Arizona Supreme Court.
The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a).
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II.

Warnings

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A.

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Petitioner must file and serve a notice of a change of address in accordance with

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Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

Address Changes

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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).

Possible Dismissal

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IT IS ORDERED:

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(1)

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

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Order on the Respondents 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

TERMPSREF

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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 James F. Metcalf 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 22nd day of July, 2013.

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TERMPSREF

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