Free Order on Motion to Reduce Sentence - District Court of Arizona - Arizona

1 LMH
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7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE DISTRICT OF ARIZONA
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10 United States of America, No. CR 04—0765—PHX—FJM mf
11 Plaintiff No. CV 06-0996-PHX-FJM (MEA)
12 v. ORDER
13 Victor Preciado-Romo,
14 Defendant/Movant.
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16 Movant, presently confined in the Eden Detention Center in Eden, Texas, has filed a
17 pro se “l\/lotion For Time Reduction by an Inmate in Federal Custody (28 U.S.C. § 2255)"
18 (dkt. #93). On November 7, 2005, he was sentenced by this Court to a term of 37 months
19 after he pled guilty to harboring illegal aliens, a violation of 8 U.S.C. § l324(a)( 1)(A)(iii).
20 The Court will dismiss the motion with leave to amend.
21 A. Failure to Use the C0urt—Approved Form
22 The Rules Governing Section 2255 Cases allow the Court, by local rule, to prescribe
23 a form to be used for tiling a § 2255 action. See Rule 2(c), Rules Goveming Section 2255
24 Proceedings. Under this Court’s local rule, Movant must use the court-approved form when
25 he tiles a pro se petition pursuant to 28 U.S.C. § 2255. @3 LRCIV 3.5(a). Movant has not
26 complied with this rule.
27 The Court may, in its discretion, forgo the requirement of the court-approved form.
28 In this case, however, the Court must insist on its use because Movant’s submission does not
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1 substantially comply with the form for a § 2255 proceeding. Movant has used a form that
2 the Court previously has seen filed by numerous other prisoners. In part, the form asserts a
3 claim that the Movant’s equal protection have been violated because as an alien, Movant is
4 not entitled to a one-year reduction of sentence based on participation in a drug program,
5 whereas a United States citizen is entitled to the reduction. It is not entirely clear whether
6 these circumstances actually apply to Movant. Regardless, because the form is inadequate
7 for a § 2255 proceeding, the Motion will be dismissed with leave to file an Amended Motion
8 within thirty days.
9 B. Amendment I
10 Any Amended Motion must be submitted on the court-approved form and signed
1 1 under penalty of perj ury. In particular, Movant must list each ground for relief and state the
12 facts supporting each ground. Movant is advised that the Amended Motion must be retyped I
13 or rewritten in its entirety on a court—approved form and may not incorporate any part of the
14 original Motion by reference. Any Amended Motion submitted by Movant should be clearly
15 designated as such on the face of the document. The Clerk of Court will be directed to
16 provide Movant with a form for filing a § 2255 action.
17 Movant is further advised that an amended § 2255 Motion supersedes the original
18 Motion. E Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915
19 (1992); Hal Roach Studios v. Richard F einer & Co., 896 F.2d 1542, 1546 (9th Cir. 1990).
20 After amendment, the original pleading is treated as nonexistent. §_e_r_@, 963 F.2d at 1262.
21 Thus, grounds for relief alleged in the original Motion which are not alleged in the amended
22 Motion are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
23 C. Rule 41 Cautionagy Notice
24 Movant should take notice that if he fails to timely comply with every provision of this
25 Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 4 1 (b)
26 of the Federal Rules of Civil Procedure. g Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61
27 (9th Cir.) (district court may dismiss action for failure to comply with any order of the
28 Court), cert. denied, 506 U.S. 915 (1992).
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1 IT IS THEREFORE ORDERED THAT:
2 (1) The "Motion for Time Reduction by an Inmate in Federal Custody (28 U.S.C. 5
3 § 2255)" (dkt. #93) is dismissed with leave to amend. Movant shall have thirty days from I
4 the date of filing of this Order to file an Amended Motion in accordance with the Court’s
5 Order.
6 (2) The Clerk ofthe Court shall enter a judgment of dismissal of this action without
7 prejudice and of the accompanying civil action (CV 06-0996-PHX-FIM (MEA)) without
8 further notice to the Movant if he fails to comply.
9 (3) The Clerk of Court is directed to provide to Movant a current court-approved
10 fonn for tiling a Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal
11 Custody (28 U.S.C. § 2255).
12 DATED this 2l" day of July, 2006.
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