Free Order - District Court of Arizona - Arizona

LMH (KB)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America Plaintiff, vs. Jose Alfredo Lopez,

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Movant/Defendant.
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No. CR 03-928-PHX-SRB No. CV 05-813-PHX-SRB (DKD) ORDER

Movant, presently confined in the United States Penitentiary in Jonesville, Virginia, has filed a pro se amended Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. The Court will dismiss the motion with leave to amend. A. Background. On December 8, 2003, after he pled guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326, Movant was sentenced to a term of fifty-seven months to be followed by three years on supervised release. Movant challenges his conviction on the following basis: Enhancements. I Jose Alfredo Lopez was brought to your honor's court for a charge of [illegal] re-entry. And was sentence[d] to the maximum sentence of 57 months because of my past criminal record. Also as an aggravated felon. (Mot. at 4.) Movant does not state how the enhancement of his sentence violated his rights such that he would be entitled to relief under 28 U.S.C. § 2255.

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B.

Summary Dismissal. A district court shall summarily dismiss a § 2255 application "[i]f it plainly appears

from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief." Rule 4(b), RULES GOVERNING § 2255 PROCEEDINGS. The district court need not hold an evidentiary hearing when the movant's allegations, viewed against the record, either fail to state a claim for relief or are patently frivolous. Marrow v. United States, 772 F.2d 525, 526 (9th Cir. 1985); see also Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982) (district court may summarily dismiss without ordering a response where the record conclusively or plainly shows that the movant is not entitled to relief). The present motion fails to state a claim for relief. Movant simply asserts that his sentence was enhanced. He does not indicate how the enhancement violated his

constitutional rights or rights under federal law. Because this defect could possibly be cured, the Court will dismiss his motion with leave to amend. The Court, however, cannot advise how to cure the defects. See Pliler v. Ford, 124 S. Ct. 2441, 2446 (2004) (to be reported at 542 U.S. 225). Movant must state in an amended motion how he believes his rights were violated. Movant is warned that he will be given no further opportunities to amend. C. Amendment. Movant may choose to amend his Motion. The Clerk of Court will be directed to provide Movant with a form for filing a § 2255 motion. 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. An amended Motion supersedes the original Motion. 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, causes of action alleged in an

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original motion which are not alleged in an amended motion are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). D. Warning of Possible Dismissal Pursuant to Rule 41. Movant should take note that if he fails to timely comply with every provision of this Order, this action will be dismissed without further notice. See Ferdik, 963 F.2d at 126061(district court may dismiss action for failure to comply with any order of the Court)

IT IS THEREFORE ORDERED: (1) That the amended Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. #31) is dismissed with leave to amend. Movant shall have 30 days from the date this Order is filed to file a Second Amended Motion; (2) That the Clerk of Court is directed to enter a judgment of dismissal of the accompanying civil action (CV 05-813-PHX-SRB (DKD)), without prejudice and without further notice to Movant, if Movant fails to file a Second Amended Motion within 30 days of the date this Order is filed; and (3) That the Clerk of Court is directed to provide to Movant a current court-approved form for filing a § 2255 Motion. DATED this 24th day of August, 2005.

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Name Prison Number Place of Confinement IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA UNITED STATES OF AMERICA vs. , (Full Name of Movant) , (Include name under which you were convicted.) Movant. ) ) ) ) ) ) ) ) ) ) ) ) )

Case Number (To be supplied by the Clerk, U. S. District Court) MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY (28 U.S.C. § 2255)

(If movant has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion in the federal court which entered the judgment.) INSTRUCTIONS - READ CAREFULLY (1) This motion must be legibly handwritten or typewritten and signed by the movant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. Where more room is needed to answer any question, use reverse side of sheet. (2) Additional pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No citation of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate memorandum. (3) Upon receipt, your motion will be filed if it is in proper order. No fee is required with this motion. (4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in forma pauperis, in which event you must execute the Declaration on the last two (2) pages, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the Certificate as to the amount of money and securities on deposit to your credit in any account in the institution. (5) Only judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by different judges or divisions

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510

either in the same district or in different districts, you must file separate motions as to each judgment. (6) Your attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction. (7) When the motion is fully completed, the must be mailed to: Phoenix & Prescott Divisions: OR U.S. District Court Clerk U.S. Courthouse, Suite 321 401 West Washington St., SPC 10 Phoenix, Arizona 85003-2119 original and two (2) copies Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street Tucson, Arizona 85701-5010

(8) Motions which do not conform to these instructions will be returned with a notation as to the deficiency. MOTION 1. 2. 3. 4. Name and location of court which entered the judgment of conviction under attack: Date of judgment of conviction: Length of sentence: Sentencing Judge: Nature of offense involved (all counts):

5.

What was your plea? (Check one) (a) Not Guilty ( ) (b) Guilty ( ) (c) Nolo contendere ( ) If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details:

6.

Kind of trial: (Check one) (a) Jury ( ) (b) Judge only ( ) 7. Did you testify at the trial? Yes ( ) No ( ) 8. Did you appeal from the judgment of conviction? Yes ( ) No ( ) 9. If you did appeal, answer the following: (a) Name of Court: (b) Result: (c) Date of result: 10. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions with respect to this judgment in any federal court? Yes ( ) No ( ) 11. If your answer to 10 was "yes," give the following information: (a) (1) Name of Court: (2) Nature of proceeding:
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(3) Grounds raised:

(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (5) Result: (6) Date of result: (b) As to any second petition, application, or motion, give the same information: (1) Name of court: (2) Nature of proceeding: (4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (5) Result: (6) Date of result: (c) As to any third petition, application, or motion, give the same information: (1) Name of court: (2) Nature of proceeding: (3) Grounds raised:

(4) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (5) Result: (6) Date of result: (d) Did you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application, or motion? (1) First petition, etc. Yes ( ) No ( ) (2) Second petition, etc. Yes ( ) No ( ) (3) Third petition, etc. Yes ( ) No ( ) (e) If you did not appeal from the adverse action on any petition, application, or motion, explain briefly why you did not:

12. State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. CAUTION: If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later date.

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For your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have other than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. If you select one or more of these grounds for relief, you must allege facts in support of the ground or grounds which you choose. Do not check any of the grounds listed below. The motion will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by an unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground One: Supporting FACTS (tell your story briefly without citing cases or law):

B.

Ground Two: Supporting FACTS (tell your story briefly without citing cases or law):

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C.

Ground Three: Supporting FACTS (tell your story briefly without citing cases or law):

D.

Ground Four: Supporting FACTS (tell your story briefly without citing cases or law):

13. If any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so presented, and give your reasons for not presenting them:

14. Do you have any petition or appeal now pending in any court as to the judgment under attack? Yes ( ) No ( )
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15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked herein: (a) At preliminary hearing: (b) At arraignment and plea: (c) At trial: (d) At sentencing: (f) In any post-conviction proceeding: (g) On appeal from any adverse ruling in a post-conviction proceeding:

16. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at approximately the same time? Yes ( ) No ( ) 17. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes ( ) No ( ) (a) If so, give the name and location of the court which imposed the sentence to be served in the future: (b) Give the date and length of sentence to be served in the future:

(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes ( ) No ( ) WHEREFORE, movant prays that the court grant him all relief to which he may be entitled in this proceeding. I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct:

Executed on

(date)

Signature of Movant

Signature of Attorney (if any)

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