Crow v. USA

Filing 5

ORDER re: 4 Amended Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Ivory Crow. Denied with leave to amend within 30 days. Signed by Judge Robert J Bryan on 9/21/16. Copy sent to Movant at Anthony TX address. (Attachments: # 1 § 2255 instructions and form)(RJB)

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1 MDR 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 United States of America, 10 Plaintiff, 11 v. 12 No. CV 16-02819-PHX-RJB CR 11-00285-PHX-RJB Ivory Crow, ORDER 13 Defendant/Movant. 14 15 On August 22, 2016, Movant Ivory Crow, who is confined in the Federal 16 Correctional Institution-La Tuna in Anthony, Texas, filed a pro se Motion Under 28 17 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.1 18 On September 6, 2016, Movant filed an Amended § 2255 Motion (Doc. 4). The Court 19 will deny the Amended § 2255 Motion with leave to amend. 20 I. Amended § 2255 - Failure to Use the Court-Approved Form 21 An amended motion supersedes an original motion. See Ferdik v. Bonzelet, 963 22 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 23 24 25 26 27 28 JDDL 1 The Court notes that Movant filed two prior § 2255 motions. The current § 2255 Motion is not considered a second or successive petition, however, because both motions were dismissed without prejudice and without an adjudication on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-86 (2000) (habeas petition which is filed after a prior habeas petition was dismissed without adjudication on the merits for failure to exhaust state remedies is not a second or successive petition). The first motion, filed in CV 1101914-PHX-ROS, was dismissed as premature because Movant had not been sentenced when he filed it. The second, filed in CV 13-02603-PHX-RJB (DKD), was dismissed because Movant had an appeal pending in the Ninth Circuit Court of Appeals. 1 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original motion as 2 nonexistent. Ferdik, 963 F.2d at 1262. 3 The Rules Governing Section 2255 Proceedings for the United States District 4 Courts allow the Court, by local rule, to prescribe a form to be used for filing a § 2255 5 motion. See Rule 2(c), Rules Governing Section 2255 Proceedings, foll. 28 U.S.C. 6 § 2255. Under this Court’s local rule, Movant must use the court-approved form when 7 filing a pro se motion pursuant to 28 U.S.C. § 2255. See LRCiv 3.5(a). Movant did not 8 use the court-approved form when filing his Amended § 2255 Motion. 9 The Court may, in its discretion, forgo the requirement that a movant use a court- 10 approved form. See LRCiv 3.5(a). The Court will require use of the court-approved 11 form because Movant’s Amended § 2255 Motion does not substantially comply with the 12 court-approved form. Therefore, the Amended § 2255 Motion will be denied with leave 13 to file a second amended motion within 30 days. 14 II. Leave to Amend 15 Within 30 days, Movant may submit a second amended motion on the court- 16 approved form. The Clerk of Court will mail Movant a court-approved form to use for 17 filing an amended motion. Movant must submit the second amended motion on the 18 court-approved form and sign it under penalty of perjury. If Movant fails to file a second 19 amended motion within 30 days from the date of filing of this Order, the Court will 20 dismiss this § 2255 action without further notice to Movant. If Movant fails to use the 21 court-approved form, the Court may strike the second amended motion and dismiss this 22 § 2255 action without further notice to Movant. 23 24 Amended Motion.” The second amended motion must be retyped or rewritten in its 25 entirety on a court-approved form and may not incorporate any part of the original 26 Motion or Amended § 2255 Motion by reference. Movant must describe each ground for 27 relief and the facts supporting each ground. 28 JDDL Movant must clearly designate on the face of the document that it is a “Second .... -2- 1 A second amended motion supersedes the original Motion and the Amended 2 § 2255 Motion. See Ferdik, 963 F.2d at 1262; Hal Roach Studios, 896 F.2d at 1546. 3 After amendment, the Court will treat the original Motion and Amended § 2255 Motion 4 as nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the 5 original Motion or the Amended § 2255 Motion and that was voluntarily dismissed or 6 was dismissed without prejudice is waived if it is not alleged in a second amended 7 motion. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). 8 III. 9 Warnings A. Address Changes 10 Movant must file and serve a notice of a change of address in accordance with 11 Rule 83.3(d) of the Local Rules of Civil Procedure. Movant must not include a motion 12 for other relief with a notice of change of address. Failure to comply may result in 13 dismissal of this § 2255 action. 14 B. 15 Movant must submit an additional copy of every filing for use by the Court. See 16 LRCiv 5.4. Failure to comply with this requirement may result in the filing being 17 stricken without further notice to Movant. Copies 18 C. 19 If Movant fails to timely comply with every provision of this Order, including 20 these warnings, the Court may dismiss this § 2255 action without further notice. See 21 Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply 22 with any order of the Court). 23 IT IS ORDERED: 24 (1) Possible Dismissal Movant’s Amended § 2255 Motion (Doc. 4 in CV 16-02819-PHX-RJB) is 25 denied with leave to amend. Movant has 30 days from the date of filing of this Order to 26 file a second amended motion in compliance with this Order. 27 28 JDDL (2) If Movant fails to file a second amended motion within 30 days, the Clerk of Court must, without further notice, terminate Document 317 in CR 11-00285-PHX-3- 1 RJB and enter a judgment of dismissal of the civil action opened in connection with this 2 § 2255 action (CV 16-02819-PHX-RJB), without prejudice. 3 (3) The Clerk of Court must mail Movant a court-approved form for filing a 4 Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (28 5 U.S.C. § 2255). 6 Dated this 21st day of September, 2016. 8 A 9 ROBERT J. BRYAN 7 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL -4-

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