UNITED STATES of America, Plaintiff,
v.
Raul CUEVAS-CHAVEZ, Defendant/Movant.
Nos. CR 05-1210-PHX-DGC, CV 06-0965-PHX-DGC (LOA).
United States District Court, D. Arizona.
April 19, 2006.*945 Richard J. Suzuki, U.S. Attorney's Office, Phoenix, AZ, for Plaintiff.
Atmore L. Baggot, Law Office of Atmore L. Baggot, Apache Junction, AZ, for Defendant/Movant.
ORDER
DAVID G. CAMPBELL, District Judge.
Movant, presently confined in the Florence Correctional Center in Florence, Arizona, has filed a pro se "Motion For Time Reduction by an Inmate in Federal Custody (28 U.S.C. § 2255)" (dkt.# 19). On April 5, 2006, he was sentenced by this Court to a term of 16 months after he pled guilty to illegal re-entry after deportation, a violation of 8 U.S.C. § 1326(a). The Court will dismiss the motion with leave to amend.
A. Failure to Use the Court-Approved Form
The Rules Governing Section 2255 Cases allow the Court, by local rule, to prescribe a form to be used for filing a § 2255 action. See Rule 2(c), Rules Governing Section 2255 Proceedings. Under this Court's local rule, Movant must use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2255. See LRCIV 3.5(a). Movant has not complied with this rule.
The Court may, in its discretion, forgo the requirement of the court-approved form. In this case, however, the Court must insist on its use because Movant's submission does not substantially comply with the form for a § 2255 proceeding. Movant has used a form that the Court previously has seen filed by numerous other prisoners. In part, the form asserts a claim that the Movant's equal protection have been violated because as an alien, Movant is not entitled to a one-year reduction of sentence based on participation in a drug program, whereas a United States citizen is entitled to the reduction. *946 It is not entirely clear whether these circumstances actually apply to Movant. Regardless, because the form is inadequate for a § 2255 proceeding, the Motion will be dismissed with leave to file an Amended Motion within thirty days.
B. Amendment
Any Amended Motion must be submitted on the court-approved form and signed under penalty of perjury. In particular, Movant must list each ground for relief and state the facts supporting each ground. 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. The Clerk of Court will be directed to provide Movant with a form for filing a § 2255 action.
Movant is further advised that an amended § 2255 Motion supersedes the original Motion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (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, grounds for relief alleged in the original Motion which are not alleged in the amended Motion are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir.1987).
C. Rule 41 Cautionary Notice
Movant should take notice that if he fails to timely comply with every provision of this Order, or any order entered in this matter, this action will be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.) (district court may dismiss action for failure to comply with any order of the Court), cert. denied, 506 U.S. 915, 113 S.Ct. 321, 121 L.Ed.2d 242 (1992).
IT IS THEREFORE ORDERED THAT:
(1) The "Motion for Time Reduction by an Inmate in Federal Custody (28 U.S.C. § 2255)" (dkt.# 19) is dismissed with leave to amend. Movant shall have thirty days from the date of filing of this Order to file an Amended Motion in accordance with the Court's Order.
(2) The Clerk of the Court shall enter a judgment of dismissal of this action without prejudice and of the accompanying civil action (CV 06-0965PHXDGC (LOA)) without further notice to the Movant if he fails to comply.
(3) The Clerk of Court is directed to provide to Movant a current court-approved form for filing a Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (28 U.S.C. § 2255).