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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MDR

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,

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Plaintiff,

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v.

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No. CV 16-02819-PHX-RJB
CR 11-00285-PHX-RJB

Ivory Crow,

ORDER

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Defendant/Movant.

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On August 22, 2016, Movant Ivory Crow, who is confined in the Federal

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Correctional Institution-La Tuna in Anthony, Texas, filed a pro se Motion Under 28

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U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody.1

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On September 6, 2016, Movant filed an Amended § 2255 Motion (Doc. 4). The Court

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will deny the Amended § 2255 Motion with leave to amend.

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I.

Amended § 2255 - Failure to Use the Court-Approved Form

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An amended motion supersedes an original motion. See Ferdik v. Bonzelet, 963

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F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d

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JDDL

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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.

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1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original motion as

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nonexistent. Ferdik, 963 F.2d at 1262.

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The Rules Governing Section 2255 Proceedings for the United States District

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Courts allow the Court, by local rule, to prescribe a form to be used for filing a § 2255

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motion. See Rule 2(c), Rules Governing Section 2255 Proceedings, foll. 28 U.S.C.

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§ 2255. Under this Court’s local rule, Movant must use the court-approved form when

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filing a pro se motion pursuant to 28 U.S.C. § 2255. See LRCiv 3.5(a). Movant did not

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use the court-approved form when filing his Amended § 2255 Motion.

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The Court may, in its discretion, forgo the requirement that a movant use a court-

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approved form. See LRCiv 3.5(a). The Court will require use of the court-approved

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form because Movant’s Amended § 2255 Motion does not substantially comply with the

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court-approved form. Therefore, the Amended § 2255 Motion will be denied with leave

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to file a second amended motion within 30 days.

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II.

Leave to Amend

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Within 30 days, Movant may submit a second amended motion on the court-

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approved form. The Clerk of Court will mail Movant a court-approved form to use for

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filing an amended motion. Movant must submit the second amended motion on the

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court-approved form and sign it under penalty of perjury. If Movant fails to file a second

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amended motion within 30 days from the date of filing of this Order, the Court will

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dismiss this § 2255 action without further notice to Movant. If Movant fails to use the

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court-approved form, the Court may strike the second amended motion and dismiss this

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§ 2255 action without further notice to Movant.

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Amended Motion.” The second amended motion must be retyped or rewritten in its

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entirety on a court-approved form and may not incorporate any part of the original

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Motion or Amended § 2255 Motion by reference. Movant must describe each ground for

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relief and the facts supporting each ground.

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JDDL

Movant must clearly designate on the face of the document that it is a “Second

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A second amended motion supersedes the original Motion and the Amended

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§ 2255 Motion. See Ferdik, 963 F.2d at 1262; Hal Roach Studios, 896 F.2d at 1546.

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After amendment, the Court will treat the original Motion and Amended § 2255 Motion

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as nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the

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original Motion or the Amended § 2255 Motion and that was voluntarily dismissed or

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was dismissed without prejudice is waived if it is not alleged in a second amended

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motion. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

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III.

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Warnings
A.

Address Changes

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Movant must file and serve a notice of a change of address in accordance with

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Rule 83.3(d) of the Local Rules of Civil Procedure. Movant must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this § 2255 action.

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B.

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Movant must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply with this requirement may result in the filing being

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stricken without further notice to Movant.

Copies

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C.

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If Movant fails to timely comply with every provision of this Order, including

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these warnings, the Court may dismiss this § 2255 action without further notice. See

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Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply

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with any order of the Court).

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IT IS ORDERED:

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(1)

Possible Dismissal

Movant’s Amended § 2255 Motion (Doc. 4 in CV 16-02819-PHX-RJB) is

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denied with leave to amend. Movant has 30 days from the date of filing of this Order to

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file a second amended motion in compliance with this Order.

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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-

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RJB and enter a judgment of dismissal of the civil action opened in connection with this

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§ 2255 action (CV 16-02819-PHX-RJB), without prejudice.

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(3)

The Clerk of Court must mail Movant a court-approved form for filing a

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Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (28

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U.S.C. § 2255).

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Dated this 21st day of September, 2016.

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A

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ROBERT J. BRYAN

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United States District Judge

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JDDL

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