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

LMH 1
2
3
4
5
1 6
i 7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE DISTRICT OF ARIZONA
9
10 United States of America, No. CR 04-0737-PHX-EHC
11 Plaintiff, No. CV 05-2208-PHX-EHC (MS)
l2 v. ORDER
13 Raul Ernesto Galan-Uraga,
14 Defendant/'Movant.
15
16 Movant, presently confined in the Central Arizona Detention Center in Florence,
17 Arizona, has filed a "Motion for Time Reduction by an Inmate in Federal Custody (28 U.S.C.
18 § 2255)” (Dkt. #79). The Court will dismiss the motion with leave to amend.
19 A. Failure to Use the Court-Approved Form
20 The Rules Governing Section 2255 Cases allow the Couit, by local rule, to prescribe
21 a form to be used for filing a § 2255 action. @ Rule 2(c), Rules Governing Section 2255
22 Proceedings. Under this C0urt’s local rule, Movant must use the court-approved form when
23 he tiles a pro se petition pursuant to 28 U.S.C. § 2255. See LRCIV 3.5(a). Movarit has not
24 used the court—approved form.
25 The Court may, in its discretion, forgo the requirement of a form. In this case,
26 however, the Court must insist on its use because Movant’s submission does not substantially
27 comply with the form for a § 2255 proceeding. Movant has used a form that many other
28 prisoners have used. The form asserts a claim that the petitioner’s equal protection rights
JDDL
ase 2:04—cr—00737-EHC Document 81 Filed 08/31/2005 Page 1 of 3

1 1 have been violated because as an alien, the petitioner is not entitled to a one-year reduction
2 of sentence based on participation in a drug program, whereas a United States citizen is
3 entitled to the reduction. Because the form is inadequate for a § 2255 proceeding, the Motion
4 will be dismissed with leave to file an Amended Motion within thirty days.
5 B. Amendment
1 6 Any Amended Motion must be submitted on the court-approved form and signed
7 under penalty of perjury. In particular, Movant must list each ground for relief and state the
p 8 facts supporting each ground. Movant is advised that the Amended Motion must be retyped
9 or rewritten in its entirety on a court—approved form and may not incorporate any part of the
10 original Motion by reference. Any Amended Motion submitted by Movant should be clearly
11 designated as such on the face of the document. The Clerk of Court will be directed to
12 provide Movant with a form for tiling a § 2255 action.
13 Movant is further advised that an amended § 2255 Motion supersedes the original
14 Motion. & Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915
15 (1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990).
16 After amendment, the original pleading is treated as nonexistent. , 963 F.2d at 1262.
17 Thus, grounds for relief alleged in the original Motion which are not alleged in the amended
18 Motion are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
19 C. Rule 41 Cautionary Notice
20 Movant should take notice that if he fails to timely comply with every provision of this
21 Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 4 1 (b)
22 ofthe Federal Rules of Civil Procedure. gg <, 963 F.2d at 1260-6l(district court may
23 dismiss action for failure to comply with any order of the Court).
24
25 IT IS THEREFORE ORDERED:
26 (1) That the Motion (Doc. #79) is dismissed with leave to amend. Movant shall have
27 30 days from the date of tiling of this Order to file an Amended Motion in accordance with
28 the Court’s Order;
JDDL — 2 —
ase 2:04—cr—00737-EHC Document 81 Filed 08/31/2005 Page 2 of 3

N 1 (2) That the Clerk of the Court shall enter a judgment of dismissal of this action
2 without prejudice and ofthe accompanying civil action (CV 05-2208-PHX-EHC (MS)) and
l 3 without further notice to the Movant if he fails to file an Amended Motion within 30 days
4 of the filing date of this Order;
5 (3) That at all times during the pendency of this action, Movant shall immediately
6 advise the Court of any change of address and its effective date. Such notice shall be
7 captioned "NOTICE OF CHANGE OF ADDRESS? The notice shall contain only
A 8 information pertaining to the change of address and its effective date. The notice shall not
9 include any motions for any other relief Failure to file a Notice of Change of Address may
10 result in the dismissal of the action for failure to prosecute pursuant to Rule 4l(b) of the
ll Federal Rules of Civil Procedure; and
12 (4) That the Clerk of Court is directed to provide to Movant a current court-approved
13 form for filing a Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal
14 Custody (28 U.S.C. § 2255).
15
16 DATED this day of , 2005.
17 @44
18
Earl H. Carroll
19 United States District Judge
20
21
22
23
24
25
26
27
28
JDDL — 3 —
ase 2:04—cr—00737-EHC Document 81 Filed 08/31/2005 Page 3 of 3

Case 2:04-cr-00737-EHC

Document 81

Filed 08/31/2005

Page 1 of 3

Case 2:04-cr-00737-EHC

Document 81

Filed 08/31/2005

Page 2 of 3

Case 2:04-cr-00737-EHC

Document 81

Filed 08/31/2005

Page 3 of 3