Free Order on Motion to Vacate (2255) - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 United States of America, 9 10 Fortunato Quinonez-Guzman, 11 M ovant. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL 1 ) M ovant, presently confined in the Eloy Detention Center in Eloy, Arizona, has filed a M otion To Vacate Sentence under 28 U.S.C. §2255 (Doc. #35). The Court w ill dis mis s the motion with leave to amend. A. Failure To Use 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(a), Rules G overning Section 2255 Proceedings. v. ) ) ) ) ) ) ) CR 04-1305-PHX-DGC CV 05-1692-PHX-DGC (JRI) IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

O RD ER

U nder this court's local rule, M ovant must use the court-approved form when he files a pro se petition p urs uant t o §2255. See LR CIV 3.5(a). M ovant has not used the court-approved petition pursuant to 28 U.S.C. §2255. The Court may , in its discretion, forgo the requirement of a form when the submission is understandable. See id. In this case, however, the Court will insist on its use becaus e M ovant's submission is not understandable. ascertain M ovant's precise grounds for relief. Specifically, the Court is unable to

The form requires M ovant to list each ground Accordingly, the M otion will be

separately and to fill in the facts supporting each ground. dismissed with leave to file an Amended M otion within thirty days.

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B. Amendment Any Amended M otion mus t be submitted on the court-approved form and signed under penalty of p erjury . supporting each ground. In particular, M ovant must list each ground for relief and state the facts M ovant is advised that the A mended M ot ion must be retyped or

rewritten in its entirety on a court-approved form and may not incorporate any part of the original M otion by reference. Any Amended M otion submitted by M ovant should be clearly designated

as s uch on t he face of the document. The Clerk of Court will be directed to provide M ovant with a form for filing a § 2255 action. M ovant is further advised that an amended § 2255 M otion supersedes the original M otion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), 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 p leading is treated as nonexistent. Ferdik, 963 F.2d at 1262. Thus, grounds for relief alleged in t he original M otion which are not alleged in the amended M ot ion are waived. F.2d 565, 567 (9th Cir. 1987). C. Rule 41 Cautionary Notice M ovant should take notice that if he fails to timely comply with every provision of this Order, or any order ent ered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonz elet , 963 F.2d 1258, 1260-61 (9th Cir.) (district court may dismiss action for failure to comply wit h any order of the Court), cert. denied, 506 U.S. 915 (1992). IT IS THEREFORE ORDERED: (1) That the M otion is dis mis s ed with leave to amend. M ovant shall have 30 days from the date of filing of this Order to file an Amended M otion in accordance w it h t he Court's Order; King v. Atiyeh, 814

(2) That the Clerk of the Court shall enter a judgment of dis missal of this action without prejudice and of the accompanying civil action (No. CV 05-1692-PHX-DGC (JRI)) and without further notice to the M ovant if he fails t o file an Amended M otion within 30 days of the filing date of this Order; 2

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(3)

That at all times during the pendency of this action, M ovant shall immediately advise Such notice shall be captioned

the Court of any change of address and its effective date.

"NOTICE OF CHANGE OF ADD RESS." The notice shall contain only information pertaining to the change of address and its effect ive date. The notice shall not include any motions for any

other relief. 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; and (4) That the Clerk of Court is directed to provide to M ovant a current court-approved form for filing a M otion to Vacat e, Set Aside or Correct Sentence By a Person in Federal Custody (28 U.S.C. § 2255). DATED this 12th day of July, 2005.

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