Free Order - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) ) ) ) ) ) ) No. CR 04-0132-PHX-RGS No. CV 05-1795-PHX-RGS (MS)

9

v.
10

Mario Ibanez-Pineda,
11

Movant.
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER

Movant 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 (Doc. #15). Movant pled guilty to illegal re-entry, a violation of 8 U.S.C. § 1326, and was sentenced by this Court to a term of fifty one months. His Motion will be dismissed with leave to amend. A. Failure to Comply with Rule 2(b) and Properly Utilize the Court-Approved Form Under Rule 2(b) of the Rules Governing Section 2255 Cases, a motion to vacate shall specify all the grounds for relief which are available to the moving party and shall state the facts supporting for each ground. In addition, the local rules of this Court require a movant to use the court-approved form for filing a motion pursuant to 28 U.S.C. § 2255. See LRCiv 3.2(a). Movant has technically filed his Motion on the court-approved form, but he has not properly used the form in presenting his claims. He has failed to identify each ground for relief on the courtapproved form. Movant has failed to allege any facts in support of his motion. In summary, the way in which Movant has filled out the form violates Rule 2(b) and defeats the purpose of the requirement of LRCiv 3.5(a) to use an approved form. B. Amendment In light of the foregoing defects, the Court will dismiss the Motion with leave to amend. Any

JDDL

Case 2:04-cr-00132-RGS

Document 37

Filed 10/31/2005

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

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.), 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 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.) (district court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915 (1992). IT IS THEREFORE ORDERED: (1) That the Motion is dismissed with leave to amend. Movant shall have 30 days from the date of filing of this Order to file an Amended Motion in accordance with the Court's Order; (2) That the Clerk of the Court shall enter a judgment of dismissal of this action without prejudice and of the accompanying civil action (No CV 05-1795-PHX-RGS (MS)) and without further notice to the Movant if he fails to file an Amended Motion within 30 days of the filing date of this Order; (3) That at all times during the pendency of this action, Movant shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE
-2-

JDDL

Case 2:04-cr-00132-RGS

Document 37

Filed 10/31/2005

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

OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective 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 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). DATED this 28th day of October, 2005.

JDDL

-3-

Case 2:04-cr-00132-RGS

Document 37

Filed 10/31/2005

Page 3 of 3