Opinion
CV-24-08083-PCT-JAT (JZB)
05-15-2024
Luke Zion Yochai-Adams-Trimmer, Petitioner, v. Ryan Thornell, et al., Respondents.
ORDER
James A. Teilborg Senior United States District Judge
Self-represented Petitioner Luke Zion Yochai-Adams-Trimmer, who is also known as Zion Z. Kauffman, is confined in the Arizona State Prison Complex-Lewis. He filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1), which is actually two separate Petitions for a Writ of Habeas Corpus challenging two separate state court convictions, and an Application to Proceed In Forma Pauperis (Doc. 2). The Court will grant the Application to Proceed, dismiss without prejudice the Petition for Writ of Habeas Corpus, and give Petitioner 30 days to either (1) file an amended petition challenging both of his criminal cases or (2) file an amended petition in this action challenging one of his criminal cases and a petition in a new action challenging the other criminal case.
I. Application to Proceed In Forma Pauperis
Petitioner's Application to Proceed In Forma Pauperis indicates that his inmate trust account balance is less than $25.00. Accordingly, the Court will grant Petitioner's Application to Proceed In Forma Pauperis. See LRCiv 3.5(c).
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II. Petitions
Petitioner filed one document containing two separate petitions for a writ of habeas corpus. The first petition (Doc. 1 at 1-15) challenges his conviction in Mohave County Superior Court criminal case #CR2020-01264, and the second petition (Doc. 1 at 16-57) challenges his conviction in Mohave County Superior Court criminal case #CR2021-00087.
It appears Petitioner has misunderstood the instructions provided with the court-approved form. Section 12(a) of the instructions states:
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.This instruction stems from Rule 2(e) of the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254, which states that “[a] petitioner who seeks relief from judgments of more than one state court must file as separate petition covering the judgment or judgments of each court.” As explained in the Advisory Committee Notes, this subsection
provides that a single petition may assert a claim only against the judgment or judgments of a single state court (i.e., a court of the same county or judicial district or circuit). This permits, but does not require, an attack in a single petition on judgments based upon separate indictments or on separate counts even though sentences were imposed on separate days by the same court. A claim against a judgment of a court of a different political subdivision must be raised by means of a separate petition.Rule 2, Advisory Committee Notes (1976 Adoption) (referring to the subsection then codified as Rule 2(d)).
Petitioner can challenge convictions in two different criminal cases from the same state court in a single § 2254 petition. See Hardemon v. Quarterman, 516 F.3d 272, 276 (5th Cir. 2008) (“We hold that under former Rule 2(d), [petitioner] was permitted, but not required, to challenge his separate convictions in a single § 2254 petition.”) (emphasis in original); Smith v. Baker, 2017 WL 4467546, at *1 n.1 (D. Nev. Oct. 6, 2017) (“Habeas Rule 2(e) does not prohibit petitioner from challenging in a single federal petition a conviction in two different cases from the same state court.”). Alternatively, Petitioner can file a § 2254 action for each of his state court convictions; if he chooses this option, he must file a § 2254 petition challenging one criminal case in one action and a separate § 2254 petition challenging the other criminal case in the other action (and in each action, he must either pay the filing fee or obtain leave to proceed in forma pauperis). What Petitioner cannot do is what he did here file two petitions in the same action.
Thus, the Court will dismiss the Petition. The Court will give Petitioner 30 days to either (1) file a single amended petition in this action challenging both CR2020-01264 and CR2021-00087 or (2) file an amended petition in this action challenging one of his criminal cases and a petition in a new action challenging the other criminal case.
III. Leave to Amend
The Clerk of Court will mail Petitioner a court-approved form to use for filing a § 2254 Petition. If Petitioner fails to file his amended petition on the court-approved form included with this Order, it will be stricken and the action dismissed without further notice to Petitioner.
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).
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 federalconstitutional right allegedly violated, with supporting facts. For example, if Petitioner raises a claim regarding a search, he should also include the federal right violated, such as the Fourth Amendment of the United States Constitution.
IV. 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 Application to Proceed In Forma Pauperis (Doc. 2) is granted.
(2) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is dismissed without prejudice, with leave to amend.
(3) Within 30 days of the date this Order is filed, Petitioner must either (a) file a single amended petition in this action challenging both Mohave Superior Court criminal cases (CR2020-01264 and CR2021-00087) or (b) file an amended petition in this action challenging one of his criminal cases and a petition in a new action challenging the other criminal case.
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(4) 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.
(5) 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).”
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.