Free Order - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ) ) ) ) ) ) ) ) ) ) ) No. CR 03-1188-3 PHX-NVW No. CV 06-1325-PHX-NVW (JRI) ORDER

Ricardo Najera-Escobar, Defendant/Movant.

Movant, presently confined in the Cedar Hill Unit of the Big Spring Correctional Center in Big Spring, Texas has filed a pro se "Motion to Vacate, Set Aside, Or Correct Sentence by A Person in Federal Custody (28 U.S.C. § 2255)" (Doc. # 354). On March 14, 2005, he was sentenced by this Court to a term of 84 months after he pleaded guilty to conspiracy to commit hostage taking, hostage taking, conspiracy to harbor illegal aliens, and harboring illegal aliens. The Court will dismiss the motion with leave to amend. A. Procedural History. In his § 2255 Motion, Movant argues that (1) Movant's counsel was ineffective for failing to investigate into his case and failing to advise Movant that the Government's evidence conflicted with testimony of other witnesses; (2) his sentence violated his Sixth Amendment right because the sentencing enhancements are unconstitutional; (3) a mitigating circumstance not taken into effect by the sentencing commission should have resulted in a downward departure; (4) he is entitled to a downward departure for savings to the

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government; (5) he is entitled to a downward departure because of his status as a deportable alien; (6) counsel was ineffective for failing to properly explain the plea agreement; (7) he is entitled to post-conviction downward departure; (8) he is entitled to a downward departure for early disposition; and (10) he is entitled to a downward departure under the Safety Valve Statute, 18 U.S.C. §3553(f). Movant sets forth no facts to support his claims, merely concluding that he is entitled to relief. B. Failure to Comply with Rule 2(b) and 2(c) 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(c), Rules Governing Section 2255 Proceedings. Under this Court's local rule, Movant must use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2255. See LRCIV 3.5(a). Movant has not complied with this rule. Moreover, Movant has failed to comply with Rule 2(b), which requires the Movant to "state the facts supporting each ground" for relief. See Rule 2(b). Movant alleges that his constitutional and statutory rights were violated, but does not set forth any facts in support of his claims. As a result of Movant's failure to set forth any factual allegations, this Court is unable to determine what actions the Movant is alleging resulted in a violation of his constitutional rights. Accordingly, this Motion will be dismissed without prejudice and Movant will be provided an opportunity to file an amended motion. Movant must allege sufficient facts so that this Court can determine in what way the Movant's constitutional rights were allegedly violated. C. Amendment Any 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 by reference. Any Amended Motion submitted by Movant should be clearly

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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. 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). D. 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, 963 F.2d at 1260-61(district court may dismiss action for failure to comply with any order of the Court). IT IS THEREFORE ORDERED THAT: (1) The "Motion for Time Reduction by an Inmate in Federal Custody (28 U.S.C. § 2255)" (Doc. # 354) is dismissed with leave to amend. Movant shall have thirty days from the date of filing of this Order to file an Amended Motion in accordance with the Court's Order. (2) The Clerk of the Court shall enter a judgment of dismissal of this action without prejudice and of the accompanying civil action (CV 06-1325-PHX-NVW (JRI)) without further notice to the Movant if he fails to comply. (3) The Clerk of Court shall 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). /// /// /// /// -3Case 2:03-cr-01188-NVW Document 356 Filed 05/26/2006 Page 3 of 4

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(4) 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 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. DATED this 24th day of May 2006.

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