Opinion
Civil Action No. 08-cv-02538-BNB.
December 22, 2008
ORDER
At issue is the pleading that Applicant, David Gordon, filed on December 19, 2008. In the pleading, Mr. Gordon states that he intends to assert in the instant action all of the claims he raised in his direct appeal in state court. Mr. Gordon refers the Court to a published opinion entered by the Colorado Court of Appeals, which apparently contains the state court of appeals' decision in his direct appeal and a listing of the claims he raised in his direct appeal.
To the extent Mr. Gordon intends that the December 19, 2008, pleading suffice as a motion to amend and as an amended application, the pleading is deficient and will be denied. An amended application supersedes the original application. See Boelens v. Redman Homes, Inc. , 759 F.2d 504, 508 (5th Cir. 1985); Cameron v. Fogarty , 705 F.2d 676 (2d Cir. 1983); London v. Coopers Lybrand , 644 F.2d 811 (9th Cir. 1981); 6 C. Wright, A. Miller M. Kane, Federal Practice and Procedure § 1476 (1990). The proposed amended application does not contain all the alleged claims or the necessary information that Mr. Gordon is required to provide in a 28 U.S.C. § 2254 application form. This Court is not required to review a state court's decision to determine what claims an applicant desires to raise in a 28 U.S.C. § 2254 action. Therefore, Mr. Gordon has failed to provide to the Court an amended application that is sufficient to supersede the prior Application and that the Court may accept as an amended application in this action. Accordingly, it is
ORDERED that the December 19, 2008, pleading is construed as a motion to amend and an attempt to submit an amended application. It is
FURTHER ORDERED that the motion as construed is DENIED and the amended application is not accepted as filed.