Opinion
No. CV 04-2366-PHX-DGC (JJM).
November 1, 2005
ORDER
Petitioner Diego Rojas, who is confined in the Arizona State Prison Complex in Tucson, Arizona, has filed a pro se "Petition For Habeas Corpus." The $5.00 filing fee has been paid. The Petition will be dismissed with leave to file an amended petition on a Court-approved form.
When he originally filed this action Petitioner was confined in the Maricopa County Durango Jail in Phoenix, Arizona. The Clerk of Court will be directed to correct the docket to reflect Petitioner's current place of confinement.
BACKGROUND
Petitioner challenges his pretrial detention in the Maricopa County Durango Jail. shortly after he filed this action, however, he was sentenced by the Maricopa County Superior Court to nine years imprisonment upon his plea of guilty to one count of Drive by Shooting. State v. Rojas, CR2004-010331 DT (Maricopa County Super. Ct. Dec. 21, 2004), available at http://www.courtminutes.maricop a.gov/docs/Criminal/122004/m1642935.pdf. Because Petitioner is now in custody pursuant to the judgment of a state court, the action will be treated as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
COURT-APPROVED FORM
Petitioner has failed to use the court-approved form for filing a pro se petition pursuant to 28 U.S.C. § 2254 as required by Rule 3.5(a) of the Local Rules of Civil Procedure. Much of the information called for in the form is missing. For example, although Petitioner has listed some ideas that he has for his grounds for relief, he has not clearly set them out nor has he set forth the facts supporting each ground. Additionally, has failed to indicate whether he present ed each of his claims for relief to the appropriate state courts. Thus, his petition fails to comply with Rule 2(c) of the Rules Governing § 2254 Actions. Accordingly, the Petition will be dismissed with leave to amend to allow Petitioner to file an amended petition on the court-approved form.
The Amended Petition must be retyped or rewritten in its entirety and may not incorporate any part of the original Petition by reference. Any Amended Petition submitted by Petitioner must 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., 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 an original petition which are not alleged in an amended petition are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
WARNING — POSSIBLE DISMISSAL
Petitioner should note that if he 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 v. Bonzelet, 963 F.2d 1258 (9th Cir.) (district court may dismiss action for failure to comply with any court order), cert. denied, 506 U.S. 915 (1992).
IT IS THEREFORE ORDERED:
(1) That the Petition is dismissed with leave to amend. Petitioner shall have thirty (30) days from the date this Order is filed to file an Amended Petition using the court-approved form. The Amended Petition must be retyped or rewritten in its entirety and may not incorporate any part of the original Petition by reference. Any Amended Petition submitted by Petitioner must be clearly designated as such on the face of the document.
(2) That the Clerk of Court shall enter a judgment of dismissal of this act ion without prejudice and without further notice to Petitioner, if Petitioner fails to file an Amended Petition within thirty (30) days of the date this Order is filed.
(3) That the Clerk of Court shall provide to Petitioner the current Court-approved forms for filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
(4) That aside from the required two copies of any amended petition a clear, legible copy of every other document filed with the Clerk shall accompany each original document for use by the District Judge or Magistrate Judge to whom the case is assigned. Failure to comply with this requirement may result in the pleading or document being stricken without further notice to Petitioner.
(5) That at all times during the pendency of this act ion, Petitioner shall immediately advise the Court and the United States Marshal of any change of address and its effective date. Such notice shall be captioned "Notice of Change of Address." The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Petitioner shall serve a copy of the Notice of Change of Address on all opposing parties. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
(6) That the Clerk of Court shall correct the docket to reflect that Petitioner's current address is:
Diego Rojas, #191667 ASPC — Tucson
10000 South Wilmot P.O. Box 24400 Tucson, AZ 85734-4400
FORM