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

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JDDL

LMH

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs. Miguel Angel Reyes-Dominguez, Defendant/Movant.

) ) ) ) ) ) ) ) ) ) )

No. CR 04-0902-PHX-ROS No. CV 05-1947-PHX-ROS (JRI) ORDER

Miguel Angel Reyes-Dominguez ("Movant"), pled guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326(a), and was sentenced to 63 months. He filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 (Dkt. #33). The Court summarily dismissed the motion with leave to amend because the grounds were too conclusory to state a claim and appeared to have been waived by the plea agreement. See Dkt. #35. Presently pending is Movant's Amended Motion (Dkt. #37). The Court will dismiss the Amended Motion and allow Movant 30 days to submit a Second Amended Motion. In his First Amended Motion, Movant asserts one ground for relief, which he has identified as "re-entry." (Am. Mot. at p. 4, Dkt. #37.) The sole facts asserted in support of his ground are set forth as follows: I was trying to cross the U.S. border by San Luis Rio Colorado - Arizona by myself. I was hiding from the agent like 3 miles away from the border (U.S. side). The agent of U.S. Border Patrol find myself under a tree. (Am. Mot. at p. 4).

Case 2:04-cr-00902-ROS

Document 38

Filed 01/27/2006

Page 1 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JDDL

Petitioner's "ground for relief" is not a ground at all, but is rather a description of the events underlying the conviction. His allegation fails to satisfy Rule 2(b) of the Rules Governing § 2255 Proceedings, which requires the motion to specify all the grounds for relief and to state the facts supporting each ground. The Amended Motion is therefore subject to summary dismissal under Rule 4(b) of the Rules Governing § 2255 Proceedings. See Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). Accordingly, the Court will dismiss the Amended Motion and allow 30 days for Movant to submit a Second Amended Motion. No further opportunities to amend will be permitted. The Clerk of Court will be directed to provide Movant with a form for filing a Second Amended Motion. Although the Court has granted Movant one more opportunity to amend, the Court cannot advise him how to cure the defects. See Pliler v. Ford, 542 U.S. 225, 231 (2004). Movant is advised, however, that a Second Amended Motion will supersede the original and First Amended Motion. 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). Movant's Second 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 or First Amended Motion by reference. Any Second Amended Motion submitted by Movant should be clearly designated as such on the face of the document. IT IS THEREFORE ORDERED: (1) That the Amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #37) is dismissed with leave to amend. Movant shall have 30 days from the date this Order is filed to file a Second Amended Motion; (2) That the Clerk of Court is directed to enter a judgment of dismissal of the accompanying civil action (No. CV 05-1947-PHX-ROS (JRI)), without prejudice and without further notice to Movant, if Movant fails to file a Second Amended Motion within 30 days of the date this Order is filed; and

-2Case 2:04-cr-00902-ROS Document 38 Filed 01/27/2006 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
JDDL

(3) That the Clerk of Court is directed to provide to Movant a current court-approved form for filing a § 2255 Motion. DATED this 26th day of January, 2006.

-3Case 2:04-cr-00902-ROS Document 38 Filed 01/27/2006 Page 3 of 3