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


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Date: January 4, 2006
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State: Arizona
Category: District Court of Arizona
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6 IN THE UNITED STATES DISTRICT COURT
7 FOR THE DISTRICT OF ARIZONA
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9 United States of America, ) No. CR O4-O1l03—PHX—FIM
I- 10 Plaintiff, l No. CV 05-3762-PHX-FIM (JIM)
11 vs. l ORDER I
12 Alejandro Cano-Sanchez, l
, 13 Defendant/Movant. l
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Movant, presently confined in the Central Arizona Detention Center in Florence,
1 5 Arizona, has tiled a pm se "l\/lotion for Time Reduction by an Inmate in Federal Custody (28
16 U.S.C. § 225 5)" (Doc. #36). The Court will dismiss the motion with leave to amend.
17 A. Failure to Use the Court-Approved Form
18 The Rules Governing Section 2255 Cases allow the Court, by local rule, to prescribe
19 a form to be used for filing a § 2255 action. See Rule 2(c), Rules Goveming Section 2255
20 Proceedings. Under this Court’ s local rule, Movant must use the court·approved form when
2] he tiles apm se petition pursuant to 28 U.S.C. § 2255. See LRCIV 3.5(a). Movant has not
22 used the court-approved form. I
23 The Court may, in its discretion, forgo the requirement of a form. In this case,
24 however, the Court must insist on its use because Movant’s submission does not substantially
25 comply with the form for a § 2255 proceeding. Movant has used a form that the Court
U 26 previously has seen tiled by numerous other prisoners. Theform asserts a claim that the
2; Mov.nt’s equal protection rights have been violated because as an alien, Movant is not
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1 entitled to a one-year reduction of sentence based on participation in a drug program,
2 whereas a United States citizen is entitled to the reduction. A similar claim is made
3 regarding release to a halfway house. It is not entirely clear whether these circumstances
4 actually apply to Movant. Consequently, because the form is inadequate for a § 2255
6 proceeding, the Motion will be dismissed with leave to tile an Amended Motion within thirty
6 days.
2 B. Amendment
8 Any Amended Motion must be submitted on the court-approved form and signed
9 under penalty of perjury. ln particular, Movant must list each ground for relief and state the
10 facts supporting each ground. Movant is advised that the Amended Motion must be retyped
1 I or rewritten in its entirety on a cou1t—approved form and may not incorporate any part of the
12 original Motion by reference. Any Amended Motion submitted by Movant should be clearly
13 designated as such on the face of the document. The Clerk of Court will be directed to
14 provide Movant with a form for tiling a § 2255 action.
15 Movant is further advised that an amended § 2255 Motion supersedes the original
16 Motion. §j<;e Ferdik v. Bonzelet, 963 F.2d l258, 1262 (9th Cir. 1992); Hal Roach Studios v.
42 Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the original
18 pleading is treated as nonexistent. , 963 F.2d at 1262. Thus, grounds for relief alleged
19 in the original Motion which are not alleged in the amended Motion are waived. _lQmg_x_;
20 @@1, 814 F.2d 565, 567 (9th Cir. 1987).
21 C. Rule 41 Cautionary Notice
22 Movant should take notice that if he fails to timely comply with every provision of this
23 Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41 (b)
24 ofthe Federal Rules of Civil Procedure. Eg , 963 F.2d at l260—6l(district court may
I 25 dismiss action for failure to comply with any order of the Court).
26 IT IS THEREFORE ORDERED that:
27 (1) The "Motion for Time Reduction by an Inmate in Federal Custody (28 U.S.C.
28 § 2255)" (Doc. # 36) is dismissed with leave to amend. Movant shall have thirty days from
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1 the date of filing of this Order to tile an Amended Motion in accordance with the Court’s
. 2 Order.
e 3 (2) The Clerk ofthe Court shall enter a judgment of dismissal of this action and of
4 the accompanying civil action (CV 05-3762—PHX—FJM (]]M)) without further notice to the
5 Movant if he fails to comply.
6 (3) At all times during the pendency of this action, Movant shall immediately advise
7 the Couitof any change of address and its effective date. Such notice shall be captioned
8 "NOTlCE OF CHANGE OF ADDRESS? The notice shall contain only information
_ 9 pertaining to the change of address and its effective date. The notice shall not include any
10 motions for any other relief. Failure to tile a Notice of Change of Address may result in the
11 dismissal of the action for failure to prosecute pursuant to Rule 4l(b) of the Federal Rules
12 of Civil Procedure. ‘
13 (4) The Clerk of Court shall provide to Movant a current court—approved form for
14 tiling a Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (28
15 USC. § 2255). (
16 . i J
( 17 DATED this 3“’ day of January, 2006. g (
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