Melone v. Shinn ( 2021 )

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Joseph Benedict Melone, No. CV 21-02096-PHX-MTL (MTM) 10 Petitioner, 11 v. ORDER 12 David Shinn, et al., 13 Respondents. 14 15 Petitioner Joseph Benedict Melone, who is confined in the Arizona State Prison 16 Complex-Yuma, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 17 § 2254 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will 18 require an answer to the Petition. 19 I. Application to Proceed In Forma Pauperis 20 Petitioner’s Application to Proceed In Forma Pauperis indicates that his inmate trust 21 account balance is less than $25.00. Accordingly, the Court will grant Petitioner’s 22 Application to Proceed In Forma Pauperis. See LRCiv 3.5(c). 23 II. Petition 24 Petitioner was convicted in Maricopa County Superior Court, case ##CR2013- 25 428089 and CR2013-445732, of two counts of aggravated driving under the influence.1 26 On February 11, 2014, he was sentenced to a three-year term of imprisonment, followed 27 28 1 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/caseInfo .asp?caseNumber=CR2013-428089 (last accessed Dec. 10, 2021). 1 by four years’ probation.2 After Petitioner admitted a probation violation, on May 1, 2017, 2 the trial court reinstated his probation.3 3 On December 17, 2019, the State filed a petition to revoke Petitioner’s probation in 4 CR2013-428089.4 On July 7, 2021, the trial court revoked Petitioner’s probation and 5 sentenced him to a 2.5-year term of imprisonment.5 6 In his Petition, Petitioner names David Shinn as Respondent and the Arizona 7 Attorney General as an Additional Respondent. Petitioner raises two grounds for relief. In 8 Ground One, Petitioner asserts his current incarceration violates the Fifth Amendment 9 prohibition against double jeopardy. In Ground Two, Petitioner contends his guilty plea 10 was obtained through “forced duress [and] coercion” at a Donaldson hearing, during which 11 Petitioner was threatened with 43 years in prison “for a victimless DUI.” 12 Petitioner states he has not presented the issues in the Petition to the Arizona Court 13 of Appeals. However, even if the exhaustion requirement has not been met, it appears that 14 any unexhausted claims may be procedurally barred. In light of the possibility of 15 procedural bar, a summary dismissal would be inappropriate. See Castille v. Peoples, 489 16 U.S. 346, 351-52 (1989) (remanding where petitioner failed to exhaust claims and it was 17 not clear whether the claims were procedurally barred). Thus, the Court will require 18 Respondents to answer the Petition. 28 U.S.C. § 2254(a). 19 III. Warnings 20 A. Address Changes 21 Petitioner must file and serve a notice of a change of address in accordance with 22 23 2 See www.courtminutes.maricopa.gov/viewerME.asp?fn=Criminal/022014/ 24 m6180011.pdf; www.courtminutes.maricopa.gov/viewerME.asp?fn=Criminal/022014/ m6180009.pdf (last accessed Dec. 10, 2021). 25 3 See www.courtminutes.maricopa.gov/viewerME.asp?fn=Criminal/052017/ 26 m7822277.pdf (last accessed Dec. 10, 2021). 27 4 See supra n.1. 28 5 See www.courtminutes.maricopa.gov/viewerDoc.asp?sadID=115488 (last accessed Dec. 10, 2021). 1 Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion 2 for other relief with a notice of change of address. Failure to comply may result in dismissal 3 of this action. 4 B. Copies 5 Petitioner must serve Respondents, or counsel if an appearance has been entered, a 6 copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a 7 certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Petitioner 8 must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to 9 comply may result in the filing being stricken without further notice to Petitioner. 10 C. Possible Dismissal 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 (1) Petitioner’s Application to Proceed In Forma Pauperis (Doc. 2) is granted. 17 (2) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this Order 18 on the Respondent(s) and the Attorney General of the State of Arizona by electronic mail 19 pursuant to Rule 4, Rules Governing Section 2254 Cases, and the Memorandum of 20 Understanding between the United States District Clerk of Court for the District of Arizona 21 and the Arizona Attorney General’s Office. Pursuant to the Memorandum of 22 Understanding, copies of the Petition and this Order will be sent via Notice of Electronic 23 Filing (NEF) to the State of Arizona Respondent through the Attorney General for the State 24 of Arizona to designated electronic mail addresses. Within 2 business days, the Attorney 25 General’s Office will acknowledge receipt of the Petition and the Court’s Order and within 26 5 business days will either file a notice of appearance on behalf of Respondents or will 27 notify the Court of the names of the Respondents on whose behalf the Arizona Attorney 28 General’s Office will not accept service of process. 1 (3) Respondents must answer the Petition within 40 days of the date of service. 2 Respondents must not file a dispositive motion in place of an answer. Respondents may 3 file an answer that (a) is limited to relevant affirmative defenses, including, but not limited 4 to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative 5 defenses as to some claims and discusses the merits of others; or (c) discusses the merits 6 of all claims. The failure to set forth an affirmative defense regarding a claim in an answer 7 may be treated as a waiver of the defense as to that claim, Day v. McDonough, 547 U.S. 8 198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular 9 claim does not waive any argument on the merits as to that claim. If the answer only raises 10 affirmative defenses, only those portions of the record relevant to those defenses need be 11 attached to the answer. If not, the answer must fully comply with all of the requirements 12 of Rule 5 of the Rules Governing Section 2254 Cases. 13 (4) Regarding courtesy copies of documents for chambers, Respondents are 14 directed to review Section II(D) of the Court’s Electronic Case Filing Administrative 15 Policies and Procedures Manual, which requires that “a courtesy copy of the filing, 16 referencing the specific document number, shall be printed directly from CM/ECF.” 17 CM/ECF Admin. Man. § II(D)(3) (emphasis added). See http://www.azd.uscourts.gov/ 18 sites/default/files/documents/adm%20manual.pdf. 19 (5) Petitioner may file a reply within 30 days from the date of service of the 20 answer. 21 . . . . 22 . . . . 23 . . . . 24 . . . . 25 . . . . 26 . . . . 27 . . . . 28 . . . . 1 | (6) This matter is referred to Magistrate Judge Michael T. Morrissey pursuant to 2 | Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a 3 | report and recommendation. 4 | Dated this 15th day of December, 2021. Michal T. df burde Michael T. Liburdi 8 | United States District Judge 10 | 11 | 12 | 3 14 | 15 | 16 | 17| 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 | 28 | | 5.