Bennett v. USA

Filing 4

ORDER re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255) - Within 30 days of the date this Order is filed, Movant must file a completed and signed Certificate, using the Certificate form provided with this Order, certifying that Movant� 39;s signature on the Certificate will serve as an original signature, under penalty of perjury, on his § 2255 Motion for purposes of 28 U.S.C. § 2242, Rule 2(b)(5) of the Rules Governing Section 2255 Proceedings, Rule 11(a) of the Federa l Rules of Civil Procedure, and Rule 3.5(a) of the Local Rules of Civil Procedure. If Movant fails to file a completed and signed Certificate on the form provided with this Order, within 30 days, the § 2255 Motion (Doc. 16 in CR 07-0238-PCT-SS M) will be stricken and the Clerk of Court must, without further notice, enter a judgment of dismissal without prejudice of the civil action (CV 15-8046-PCT-SMM (MHB)) opened in connection with the § 2255 Motion. The Clerk of Court must mail Movant the Certificate form. Signed by Senior Judge Stephen M McNamee on 4/3/15. (LAD)

1

WO

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
12

v.

No. CV 15-8046-PCT-SMM (MHB)
CR 07-0238-PCT-SMM
ORDER

Alvin Franke Bennett,

13

Defendant/Movant.

14
15

On March 30, 2015, Movant Alvin Franke Bennett, who is confined in the United

16

States Penitentiary-Lewisburg in Lewisburg, Pennsylvania, filed an unsigned pro se

17

Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in

18

Federal Custody.

19

I.

Movant’s § 2255 Motion is Unsigned

20

Movant did not sign his § 2255 Motion. The § 2255 Motion must be signed by

21

Movant under penalty of perjury. See 28 U.S.C. § 2242; Rule 2(b)(5) of the Rules

22

Governing Section 2255 Proceedings; Fed. R. Civ. P. 11(a); LRCiv 3.5(a). An unsigned

23

pleading must be stricken unless omission of the signature is corrected promptly after

24

being called to the attention of the party. Fed. R. Civ. P. 11(a).

25
26

filing date of this Order to submit a completed and signed Certificate, using the

27

Certificate form included with this Order, certifying that Movant’s signature on the

28

JDDL

Because the § 2255 Motion is unsigned, Movant will be given 30 days from the

Certificate will serve as an original signature, under penalty of perjury, on his § 2255

1

Motion for the purposes of 28 U.S.C. § 2242, Rule 2(b)(5) of the Rules Governing

2

Section 2255 Proceedings, Rule 11(a) of the Federal Rules of Civil Procedure, and Rule

3

3.5(a) of the Local Rules of Civil Procedure.

4

If Movant fails to file a completed and signed Certificate on the form provided

5

with this Order, within 30 days, the Clerk of Court will, without further notice, strike his

6

§ 2255 Motion and dismiss this case.

7

II.

Warnings

8

A.

9

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

10

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

11

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

12

dismissal of this § 2255 action.

Address Changes

13

B.

14

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

15

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

16

stricken without further notice to Movant.

Copies

17

C.

18

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

19

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

20

Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss

21

an action for failure to comply with any order of the Court).

22

IT IS ORDERED:

23

(1)

Possible Dismissal

Within 30 days of the date this Order is filed, Movant must file a completed

24
25

Movant’s signature on the Certificate will serve as an original signature, under penalty of

26

perjury, on his § 2255 Motion for purposes of 28 U.S.C. § 2242, Rule 2(b)(5) of the

27

Rules Governing Section 2255 Proceedings, Rule 11(a) of the Federal Rules of Civil

28
JDDL

and signed Certificate, using the Certificate form provided with this Order, certifying that

Procedure, and Rule 3.5(a) of the Local Rules of Civil Procedure.
-2-

1

(2)

If Movant fails to file a completed and signed Certificate on the form

2

provided with this Order, within 30 days, the § 2255 Motion (Doc. 16 in CR 07-0238-

3

PCT-SSM) will be stricken and the Clerk of Court must, without further notice, enter a

4

judgment of dismissal without prejudice of the civil action (CV 15-8046-PCT-SMM

5

(MHB)) opened in connection with the § 2255 Motion.

6

(3)

7

DATED this 3rd day of April, 2015.

The Clerk of Court must mail Movant the Certificate form.

8
9
10
11

Honorable Stephen M. McNamee
Senior United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JDDL

-3-

1
2
3
4
5

______________________________
______________________________
______________________________
(Your Name and Address)

6
IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

United States of America,
Plaintiff,

11
12
13

No. CV 15-8046-PCT-SMM (MHB)
CR 07-0238-PCT-SMM

v.

CERTIFICATE

Alvin Franke Bennett,
Defendant/Movant.

14
15

I, Alvin Franke Bennett, hereby certify:

16

I have read the pro se § 2255 Motion filed by me on March 30, 2015, and to the

17

best of my knowledge, information, and belief, formed after an inquiry reasonable under

18

the circumstances:

19

(1)

it is not being presented for any improper purpose, such as to
harass or to cause unnecessary delay or a needless increase in
the cost of litigation;

(2)

the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law or the
establishment of new law;

(3)

the allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery; and

20
21
22
23
24
25
26
27
28
JDDL

....
-4-

1
2
3
4
5
6
7

(4)

the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on a lack of information or belief.

I further certify that my signature on this document shall serve as an original
signature, under penalty of perjury, on the above-referenced § 2255 Motion for the
purposes of 28 U.S.C. § 2242, Rule 2(b)(5) of the Rules Governing Section 2255
Proceedings, Rule 11(a) of the Federal Rules of Civil Procedure, and Rule 3.5(a) of the
Local Rules of Civil Procedure.

8
9

EXECUTED on this ______ day of ______________________________, 2015.

10
11

________________________________
(Signature of Movant)

12
13

Alvin Franke Bennett

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JDDL

-5-