Pete v. USA

Filing 8

ORDER - The Clerk of Court must serve a copy of the Amended § 2255 Motion (Doc. 7 in CV 13-8149-PCT-RCB (DKD)) and this Order on the United States Attorney for the District of Arizona. The parties and the Clerk of Court must file all document s related to the Amended § 2255 Motion in the civil case. The United States Attorney for the District of Arizona has 60 days from the date of service within which to answer the Amended § 2255 Motion. The matter is referred to Magistrate Judge David K. Duncan 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 Robert C Broomfield on 8/28/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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No. CV 13-8149-PCT-RCB (DKD)

vs.

CR 03-0355-PCT-RCB
ORDER

Branden Pete,

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Defendant/Movant.

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Movant Branden Pete, who is confined in the U.S. Penitentiary in Florence,

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Colorado, filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct

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Sentence by a Person in Federal Custody with a motion for the appointment of counsel.

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Because Movant had previously been appointed counsel, the Court denied the motion for

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appointment of counsel and granted Movant 30 days in which to file an amended § 2255

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motion. (Doc. 5.) Movant has filed an Amended Motion Under 28 U.S.C. § 2255 to

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Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 7.) The

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Court will call for an answer to the § 2255 Motion.

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I.

Procedural History

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Movant was convicted by a jury of second degree murder, a lesser included

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offense of first degree murder, in violation of 18 U.S.C. § 1153 and 1111, as charged in

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count one of the superseding indictment; felony murder in the course of a kidnapping in

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violation of 18 U.S.C. §§ 1153 and 1201(a)(2), as charged in count two of the

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superseding indictment; felony murder in the course of aggravated sexual abuse in

TERMPSREF

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violation of 18 U.S.C. §§ 1153, 111, and 2241(a)(1), as charged in count four of the

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superseding indictment; and conspiracy to commit murder in violation of 18 U.S.C.

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§ 1117, as charged in count seven of the superseding indictment. (Doc. 302.) At the

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time of the offenses, Movant was 16 years old. On April 17, 2006, the Court sentenced

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Movant to concurrent life terms on each count followed by five years on supervised

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release. On June 10, 2008, the Ninth Circuit mandate issued, which affirmed Movant’s

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conviction and sentences. (Doc. 329.)

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II.

Amended § 2255 Motion

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In the Amended § 2255 Motion, Movant alleges one ground for relief. Movant

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was 16 years old at the time of the offenses and at sentencing, the Court was required by

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18 U.S.C. § 1111 to impose a sentence of life in prison without possibility of parole. In

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Miller v. Alabama,132 S.Ct. 2455 (2012), the Supreme Court held that juvenile homicide

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offenders could not be sentenced to life in prison without possibility of parole without

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being afforded an opportunity to present mitigating evidence to support a sentence less

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than life without parole.

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conviction. The Court will require a response to the Amended § 2255 Motion.

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IT IS ORDERED:

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(1)

Movant contends that Miller applies retroactively to his

The Clerk of Court must serve a copy of the Amended § 2255 Motion

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(Doc. 7 in CV 13-8149-PCT-RCB (DKD)) and this Order on the United States Attorney

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for the District of Arizona.

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(2)

The parties and the Clerk of Court must file all documents related to the

Amended § 2255 Motion in the civil case.
(3)

The United States Attorney for the District of Arizona has 60 days from the

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date of service within which to answer the Amended § 2255 Motion. The United States

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Attorney may file an answer limited to relevant affirmative defenses, including but not

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

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limited to affirmative defenses, only those portions of the record relevant to those

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defenses need be attached to the answer. Failure to set forth an affirmative defense in an
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answer may be treated as a waiver of the defense. Day v. McDonough, 547 U.S. 198,

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209-11 (2006). If not limited to affirmative defenses, the answer must fully comply with

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all of the requirements of Rule 5 of the Rules Governing Section 2255 Cases.

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(4)

Movant may file a reply within 30 days from the date of service of the

answer to the Amended § 2255 Motion.
(5)

The matter is referred to Magistrate Judge David K. Duncan 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 28th day of August, 2013.

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