Serrillo #324464 v. Moody et al

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JL
WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Modesto Cortez Serrillo,
Petitioner,
v.
Christopher Moody, et al.,
Respondents.
No. CV-26-00146-PHX-JAT (DMF)
ORDER
Petitioner Modesto Cortez Serrillo, who is confined in the Red Rock Correctional
Center, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 (Doc. 1) and paid the filing fee. Petitioner has also filed a Motion to Appoint
Counsel (Doc. 8). The Court will deny the Motion without prejudice and require an answer
to the Petition.
I. Petition
After a jury trial, Petitioner was convicted in Yuma County Superior Court, case
#1400CR201400470, of one count of first-degree murder and was sentenced to natural life
imprisonment. In his Petition, Petitioner names Christopher Moody as Respondent and the
Arizona Attorney General as an additional Respondent. Petitioner raises two grounds for
relief. In Ground One, Petitioner asserts that the trial court erred by denying his request
for jury instructions on a lesser included offense and heat of passion. Petitioner contends
the Court of Appeals erred by affirming his conviction and sentence. He also claims he
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did not understand the plea offer or the potential outcome if he went to trial because his
counsel told him that “a life sentence is 25 years regardless.”
In Ground Two, Petitioner asserts he received ineffective assistance of counsel
because his counsel induced him to reject an offer to plead guilty to second-degree murder,
with a sentence of 25 calendar years.
Petitioner states that he presented the issues in the Petition to the Arizona Court of
Appeals. The Court will require Respondents to answer the Petition. 28 U.S.C. § 2254(a).
II. Motion to Appoint Counsel
“Indigent state prisoners applying for habeas corpus relief are not entitled to
appointed counsel unless the circumstances of a particular case indicate that appointed
counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191,
1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when “the
interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
Petitioner offers no basis for his Motion to Appoint Counsel and therefore has not
made the necessary showing for appointment of counsel. The Court will deny his Motion
to Appoint Counsel without prejudice. If the Court determines that an evidentiary hearing
is required, counsel will be appointed in accordance with Rule 8(c) of the Rules Governing
Section 2254 Proceedings.
III. 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.
B. Copies
Because Petitioner is currently confined in an Arizona Department of Corrections,
Rehabilitation & Reentry Complex or Private Facility subject to General Order 23-19,
Petitioner can comply with Federal Rule of Civil Procedure 5(d) by including, with every
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document Petitioner files, a certificate of service stating that this case is subject to General
Order 23-19 and indicating the date the document was delivered to prison officials for filing
with the Court. Petitioner is not required to serve Respondents with copies of every
document or provide an additional copy of every document for the Court’s use.
If Petitioner is transferred to a facility other than one subject to General Order 23-
19, Petitioner will be required to: (a) serve Respondents, or counsel if an appearance has
been entered, a copy of every document Petitioner files, and include a certificate stating
that a copy of the filing was served; and (b) submit an additional copy of every filing for
use by the Court. See Fed. R. Civ. P. 5(a) and (d); LRCiv 5.4. Failure to comply may
result in the filing being stricken without further notice to Petitioner.
C. Possible Dismissal
If Petitioner fails to timely comply with every provision of this Order, including
these warnings, the Court may dismiss this action without further notice. See Ferdik v.
Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action
for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Petitioner’s Motion to Appoint Counsel (Doc. 8) is denied without
prejudice.
(2) The Clerk of Court must serve a copy of the Petition (Doc. 1) and this Order
on the Respondent(s) and the Attorney General of the State of Arizona by electronic mail
pursuant to Rule 4, Rules Governing Section 2254 Cases, and the Memorandum of
Understanding between the United States District Clerk of Court for the District of Arizona
and the Arizona Attorney General’s Office. Pursuant to the Memorandum of
Understanding, copies of the Petition and this Order will be sent via Notice of Electronic
Filing (NEF) to the State of Arizona Respondent through the Attorney General for the State
of Arizona to designated electronic mail addresses. Within 2 business days, the Attorney
General’s Office will acknowledge receipt of the Petition and the Court’s Order and within
5 business days will either file a notice of appearance on behalf of Respondents or will
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notify the Court of the names of the Respondents on whose behalf the Arizona Attorney
General’s Office will not accept service of process.
(3) Respondents must answer the Petition within 40 days of the date of service.
Respondents must not file a dispositive motion in place of an answer. Respondents may
file an answer that (a) is limited to relevant affirmative defenses, including, but not limited
to, statute of limitations, procedural bar, or non-retroactivity; (b) raises affirmative
defenses as to some claims and discusses the merits of others; or (c) discusses the merits
of all claims. The failure to set forth an affirmative defense regarding a claim in an answer
may be treated as a waiver of the defense as to that claim, Day v. McDonough, 547 U.S.
198, 209-11 (2006), but an answer that is limited to affirmative defenses on a particular
claim does not waive any argument on the merits as to that claim. If the answer only raises
affirmative defenses, only those portions of the record relevant to those defenses need be
attached to the answer. If not, the answer must fully comply with all of the requirements
of Rule 5 of the Rules Governing Section 2254 Cases.
(4) Regarding courtesy copies of documents for chambers, Respondents are
directed to review Section II(D) of the Court’s Electronic Case Filing Administrative
Policies and Procedures Manual, which requires that “a courtesy copy of the filing,
referencing the specific document number, shall be printed directly from CM/ECF.”
CM/ECF Admin. Man. § II(D)(3) (emphasis added). See http://www.azd.uscourts.gov/
sites/default/files/documents/adm%20manual.pdf.
(5) Petitioner may file a reply within 30 days from the date of service of the
answer.
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(6) This matter is referred to Magistrate Judge Deborah M. Fine pursuant to
Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for further proceedings and a
report and recommendation.
Dated this 6th day of April, 2026.
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