Opinion
CV 22-00153-PHX-JAT (ESW)
03-07-2022
Jose Luis Tapia Fierro, Petitioner, v. State of Arizona, Respondent.
ORDER
James A. Teilborg Senior United States District Judge
Petitioner Jose Luis Tapia Fierro, who is confined in the Arizona State Prison Complex-Florence, has filed a pro se “Protective (28 U.S.C. § 2254) Habeas Corpus Petition” (Doc. 1), which the Court construes as a Motion for Stay and Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. The Court will deny the Motion with leave to refile, dismiss the Petition without prejudice, and give Petitioner 30 days to file an amended petition and either pay the $5.00 filing fee or file an Application to Proceed In Forma Pauperis (Habeas).
I. Failure to Comply with Local Rule 3.5(c)
Rule 3.5(c) of the Local Rules of Civil Procedure requires that “[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed in forma pauperis on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit.” Rule 3.5(c) also requires payment of the $5.00 filing fee if a petitioner has in excess of $25.00 in his inmate account.
Because Petitioner has not paid the $5.00 filing fee or filed an Application to Proceed In Forma Pauperis, Petitioner will be given 30 days from the date this Order is filed to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis using the form included with this Order.
II. Petition Not on Court-Approved Form
Pursuant to Rule 3.5(a) of the Local Rules of Civil Procedure, Petitioner is required to use a court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2254. While the Court may, in its discretion, forgo the requirement that a petitioner use a court-approved form, the Court will not do so here because the Petition does not substantially comply with the court-approved form. The Court will dismiss the Petition without prejudice and with leave to file an amended petition within 30 days.
III. Motion for Stay
Petitioner seeks a stay of this case pending exhaustion of his state remedies. However, while there is authority supporting the Court's ability to stay a fully unexhausted petition, Mena v. Long, 813 F.3d 907 (9th Cir. 2016), Petitioner does not describe his state court proceedings in enough detail to allow either Respondent or the Court to meaningfully address this issue. Accordingly, the Court will deny the Motion to Stay without prejudice and with leave to refile. If Petitioner files another motion for stay, he must include information concerning the nature and current status of any pending appeals, petitions for post-conviction relief, or petitions for review.
IV. Leave to Amend
Within 30 days, Petitioner may submit an amended petition on the court-approved form. The Clerk of Court will mail Petitioner a court-approved form to use for filing a § 2254 Petition. If Petitioner fails to use the court-approved form, the Court may strike the amended petition and dismiss this action without further notice to Petitioner.
If Petitioner files an amended petition, he must use the court-approved form, set forth each claim in a separate ground, and specifically allege in each ground the particular federal constitutional right allegedly violated, with supporting facts. For example, if Petitioner claims his due process rights are violated, he must also include the federal rights violated, such as the Fifth and Fourteenth Amendments of the United States Constitution. Likewise, if Petitioner claims his right to effective assistance of counsel was violated, he must also include the federal right violated, such as the Sixth Amendment of the United States Constitution.
In addition, a petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition. See Rule 2(a), Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th Cir. 1997). Typically, this person is the warden of the institution where the petitioner is incarcerated. When a habeas petitioner has failed to name a respondent who has the power to order the petitioner's release, the Court “may not grant effective relief, and thus should not hear the case unless the petition is amended to name a respondent who can grant the desired relief.” Smith v. Idaho, 392 F.3d 350, 355 n.3 (9th Cir. 2004).
The amended petition must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Petition by reference. Any amended petition submitted by Petitioner should be clearly designated as such on the face of the document.
An amended petition supersedes the original Petition. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the original Petition and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in an amended petition. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). . . . .
V. 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. 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, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Petitioner's “Protective (28 U.S.C. § 2254) Habeas Corpus Petition” (Doc. 1) is construed as a Motion for Stay and Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §2254. The Motion for Stay is denied without prejudice and with leave to refile. The Petition for Writ of Habeas Corpus is dismissed without prejudice and with leave to amend.
(2) Petitioner has 30 days from the date this Order is filed to file an amended petition.
(3) The Clerk of Court must enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner, if Petitioner fails to submit an amended petition on the court-approved form within 30 days from the filing date of this Order and deny any pending unrelated motions as moot.
(4) Within 30 days of the date this Order is filed, Petitioner must either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis.
(5) If Petitioner fails to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Petitioner and deny any pending unrelated motions as moot.
(6) The Clerk of Court must send Petitioner the current court-approved form for filing a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)” and the current court-approved form for filing an Application to Proceed In Forma Pauperis (Habeas).
Instructions for Filing a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody in the United States District Court for the District of Arizona
1. Who May Use This Form. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence on the grounds that your conviction or sentence violates the United States Constitution or other federal law. You also may use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. This form should not be used in death penalty cases. If you were sentenced to death, you are entitled to the assistance of counsel and you should request the appointment of counsel.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.5(a) provides that habeas corpus petitions must be filed on the court-approved form. The form must be typed or neatly handwritten. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages. The form, however, must be completely filled in to the extent applicable. You do not need to cite law. If you want to file a brief or arguments, you must attach a separate memorandum.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing Fee. The filing fee for this action is $5.00. If you are unable to pay the filing fee, you may request permission to proceed in forma pauperis by completing and signing the Application to Proceed In Forma Pauperis provided with the petition form. You must have an official at the prison or jail complete the certificate at the bottom of the application form. If the amount of money in your account exceeds $25.00, you must pay the $5.00 filing fee. LRCiv 3.5(b).
5. Original and Judge's Copy. You must send an original plus one copy of your petition and of any other document submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
6. Where to File. You should file your petition in the division where you were convicted. See LRCiv 5.1(b). If you are challenging a judgment of conviction entered in Maricopa, Pinal, Yuma, La Paz, or Gila County, file your petition in the Phoenix Division. If you are challenging a judgment of conviction entered in Apache, Navajo, Coconino, Mohave, or Yavapai County, file your petition in the Prescott Division. If you are challenging a judgment of conviction entered in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file your petition in the Tucson Division. See LRCiv 5.1(b) and 77.1(a).
Mail the original and one copy of your petition with the $5.00 filing fee or the application to proceed in forma pauperis to:
Phoenix & Prescott Divisions:
U.S. District Court Clerk
U.S. Courthouse, Suite 130
401 West Washington Street, SPC 10
Phoenix, Arizona 85003-2119
OR
Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
Tucson, Arizona 85701-5010
7. Change of Address. You must immediately notify the Court and respondents in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case.
8. Certificate of Service. You must provide the respondents with a copy of any document you submit to the Court (except the initial petition and application to proceed in forma pauperis). Each original document (except the initial petition and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the respondents and the address to which it was mailed. Fed.R.Civ.P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. This section does not apply to inmates housed at an Arizona Department of Corrections facility that participates in electronic filing.
A certificate of service should be in the following form:
I hereby certify that a copy of the foregoing document was mailed this ____ (month, day, year) to:
Name: ___
Address: ____
Attorney for Respondent(s)
(Signature)
9. Amended Petition. If you need to change any of the information in the initial petition, you must file an amended petition. The amended petition must be written on the court-approved petition for writ of habeas corpus form. You may amend your pleading once without leave (permission) of Court within 21 days after serving it or within 21 days after any respondent has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, you must file a motion for leave to amend and lodge (submit) a proposed amended petition. LRCiv 15.1. An amended petition may not incorporate by reference any part of your prior petition. LRCiv 15.1(a)(2). Any grounds not included in the amended petition are considered dismissed.
10. Exhibits. If available, you should attach a copy of all state and federal court written decisions regarding the conviction you are challenging. Do not submit any other exhibits with the petition. Instead, you should paraphrase the relevant information in the petition. The respondents are obligated to provide relevant portions of the record.
Any exhibits you attach should be individually labeled (e.g. “Exhibit 1, ” “Exhibit 2, ” etc.) and attached at the end of your petition. Exhibits should not be placed in the middle of your petition.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion.
12. Warnings.
a. Judgment Entered by a Single Court. You may challenge the judgment entered by only one court. Multiple counts which resulted in a judgment by the same court may be challenged in the same petition. If you wish to challenge judgments entered by more than one court, however, you must file separate petitions for each judgment.
b. Grounds for Relief. You must raise all grounds for relief that relate to this conviction or sentence. Any grounds not raised in this petition will likely be barred from being raised in any subsequent federal action.
c. Exhaustion. In order to proceed in federal court, you ordinarily must exhaust the remedies available to you in the state courts as to each claim on which you request action by the federal court. If you did not fairly present each of your grounds to the Arizona Court of Appeals, your petition may be dismissed. If you did not present one or more of your grounds to the Arizona Court of Appeals, explain why you did not.
FINAL NOTE
You should follow these instructions carefully. Failure to do so may result in your petition being stricken or dismissed by the Court. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the petition is being continued and number all pages.