Opinion
No. CV 05-3760-PHX-JAT (JCG).
November 29, 2005
ORDER
Petitioner filed a pro se "Petition for Writ of Habeas Corpus By A Person in State Custody Pursuant to 28 U.S.C. § 2254," and paid the requisite filing fee. He contends that he should be released because he has served his thirteen-year term and "pursuant to Department Order I am entitled to some sort of release for good behavior." The petition is not on the court-approved form nor does the petition substantially comply with the form as required by Local Rule of Civil Procedure 3.5(a). The form calls for certain information that is missing from Petitioner's application. See Rule 2(b), (d) and Appendix of Forms, Rules Governing § 2254 Cases. Accordingly, the Court will dismiss the petition with leave to amend using the court-approved form within thirty days. The Court will direct the Clerk of Court to send Petitioner a copy of the form that he must use to amend his petition.
Petitioner must retype or rewrite his amended petition in its entirety, and he may not incorporate any part of the original petition by reference. An amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 F.2d 1258,1262 (9th Cir. 1992), cert. denied, 506 U.S. 915 (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. Petitioner must also clearly designate his amended petition as such on the face of the document.
If Petitioner fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik, 963 F.2d 1258(district court may dismiss action for failure to comply with any court order).
IT IS THEREFORE ORDERED THAT:
(1) The Petition (Dkt. #1) is dismissed with leave to amend. Petitioner must file an Amended Petition using the court-approved form within thirty days from the date of filing of this Order.
(2) The Clerk of Court is directed to enter dismissal of this action without prejudice and without further notice if Petitioner fails to comply.
(3) The Clerk of Court is directed to send Petitioner the current court-approved form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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