Opinion
Nos. CR 05-0606-PHX-SMM, CV 05-3763-PHX-SMM (ECV).
December 2, 2005
ORDER
Movant, presently confined in the Central Arizona Detention Center in Florence, Arizona, has filed a pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. On September 19, 2005, he was sentenced to a term of thirty months after he pled guilty to illegal re-entry after deportation, a violation of 18 U.S.C. § 1326. The Court will dismiss the motion with leave to amend.
A. Failure to Use the Court-Approved Form
The Rules Governing Section 2255 Cases allow the Court, by local rule, to prescribe a form to be used for filing a § 2255 action. See Rule 2(c), Rules Governing Section 2255 Proceedings. Under this Court's local rule, Movant must use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2255. See LRCIV 3.5(a). Movant has not complied with this rule.
The Court may, in its discretion, forgo the requirement of the court-approved form. In this case, however, the Court must insist on its use because Movant's submission does not substantially comply with the form for a § 2255 proceeding. Movant has used a form that the Court previously has seen filed by numerous other prisoners. In part, the form asserts a claim that the Movant's equal protection and due process rights have been violated because as an alien, Movant is not entitled to a one-year reduction of sentence based on participation in a drug program, whereas a United States citizen is entitled to the reduction. It is not entirely clear whether these circumstances actually apply to Movant. Consequently, because the form is inadequate for a § 2255 proceeding, the Motion will be dismissed with leave to file an Amended Motion within thirty days.
B. Amendment
Any Amended Motion must be submitted on the court-approved form and signed under penalty of perjury. In particular, Movant must list each ground for relief and state the facts supporting each ground. Movant is advised that the Amended Motion must be retyped or rewritten in its entirety on a court-approved form and may not incorporate any part of the original Motion by reference. Any Amended Motion submitted by Movant should be clearly designated as such on the face of the document. The Clerk of Court will be directed to provide Movant with a form for filing a § 2255 action.
Movant is further advised that an amended § 2255 Motion supersedes the original Motion. See 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 the original Motion which are not alleged in the amended Motion are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
C. Rule 41 Cautionary Notice
Movant should take notice 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, 1260-61 (9th Cir. 1992) (stating that a district court may dismiss action for failure to comply with any order of the Court).
IT IS THEREFORE ORDERED that:
(1) The "Motion for Time Reduction by an Inmate in Federal Custody ( 28 U.S.C. § 2255)" (Dkt. #20) is dismissed with leave to amend. Movant shall have thirty days from the date of filing of this Order to file an Amended Motion in accordance with the Court's Order.
(2) The Clerk of the Court shall enter a judgment of dismissal of this action without prejudice and of the accompanying civil action (CV 05-3763-PHX-DGC (ECV)) without further notice to the Movant if he fails to comply.
(3) The Clerk of Court is directed to provide to Movant a current court-approved form for filing a Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody ( 28 U.S.C. § 2255).
__________________________________ Name
__________________________________ Prison Number
__________________________________ Place of Confinement
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA ) ) vs. ) ________________________________ ) Case Number (To be supplied by _________________________________,) the Clerk, U.S. District Court) (Full Name of Movant) ) ) _________________________________,) MOTION TO VACATE, SET ASIDE, (Include name under which you were) OR CORRECT SENTENCE BY A convicted.) ) PERSON IN FEDERAL CUSTODY ) ( 28 U.S.C. § 2255) Movant.) ___________________________________)
(If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.)
INSTRUCTIONS — READ CAREFULLY
(1) This motion must be legibly handwritten or typewritten and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. Where more room is needed to answer any question, use reverse side of sheet.
(2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum.
(3) Upon receipt, your motion will be filed if it is in proper order. No fee is required with this motion.
(4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in forma pauperis, in which event you must execute the Declaration on the last two (2) pages, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the Certificate as to the amount of money and securities on deposit to your credit in any account in the institution.
(5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions either in the same district or in different districts, you must file separate motions as to each judgment.
(6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction.
(7) When the motion is fully completed, the original and two (2) copies must be mailed to:
Phoenix Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 321 U.S. Courthouse, Suite 1500 401 West Washington St., SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010
(8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency.
FORM