Summary
stating that "an amended § 2255 Motion supersedes the original Motion"
Summary of this case from Lofton v. U.S.Opinion
Nos. CR 05-786-PHX-SMM, CV 06-1424-PHX-SMM (HCE).
June 15, 2006
ORDER
Movant, presently confined in the Central Arizona Detention Center in Florence, Arizona, has filed a pro se "Motion for Time Reduction By an Inmate in Federal Custody ( 28 U.S.C. § 2255)" (document #31). The Court will deny the motion with leave to amend.
A. Failure to Use the Court-Approved Form
The Rules Governing Section 2255 Proceedings for the United States District Courts allow the Court, by local rule, to prescribe a form to be used for filing a § 2255 motion. See Rule 2(c), Rules Governing Section 2255 Proceedings. Under this Court's local rule, Movant must use the court-approved form when he files a pro se motion pursuant to 28 U.S.C. § 2255. See Local Rules of Civil Procedure (LRCiv) 3.5(a). Movant has not used the court-approved form.
The Court may, in its discretion, forgo the requirement of that a Movant use a court-approved form. See LRCiv 3.5(a). In this case, however, the Court will require use of the court-approved form because Movant's motion does not substantially comply with the court-approved form for filing a § 2255 proceeding. Movant has used an unauthorized form that the Court has seen previously filed by numerous other prisoners. Because the form Movant used is inadequate for a § 2255 proceeding, the Motion will be denied with leave to file an Amended Motion within thirty days.
B. Amendment
Any Amended Motion must be submitted on the court-approved form and signed under penalty of perjury. In particular, Movant must list each ground for relief and state the facts supporting each ground. Movant is advised that the Amended Motion must be retyped or rewritten in its entirety on a court-approved form and may not incorporate any part of the original Motion by reference. Any Amended Motion submitted by Movant should be clearly designated as an " Amended Motion" on the face of the document. To assist Movant, the Court will direct the Clerk of Court to send Movant the current, court-approved form for filing a § 2255 action.
Movant is further advised that an amended § 2255 Motion supersedes the original Motion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent.Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in the original Motion which are not alleged in the amended Motion are waived. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)