Moreno-Martinez v. United States of America, No. 2:2008cv01352 - Document 6 (D. Ariz. 2008)
Court Description: ORDER denying with 30 days leave to amend 5 AMENDED MOTION to Vacate, Set Aside or Correct Sentence (2255) Re: Criminal Case No CR 08-187-PHX-SMM. Clerk must enter dismissal without prejudice if Petitioner fails to comply. Signed by Judge Stephen M McNamee on 9/11/08. (LSP)
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Moreno-Martinez v. United States of America 1 Doc. 6 WO SC 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 United States of America, 11 Plaintiff, 12 13 v. 14 Leonides Moreno Martinez, 15 Defendant/Movant. 16 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-1352-PHX-SMM (MEA) No. CR 08-0187-PHX-SMM ORDER 17 Movant Leonides Moreno Martinez, who was then confined in the Central Arizona 18 Detention Center in Florence, Arizona, filed a pro se “Motion for Time Reduction by an 19 Inmate in Federal Custody, (28 U.S.C. & 2255).”1 (Doc.# 1.)2 The Court denied the motion 20 with leave to amend and provided Movant the court-approved form to seek relief pursuant 21 to 28 U.S.C. § 2255. (Doc.# 3.) Movant has filed an “[Amended] Motion Under 28 U.S.C. 22 § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody” (Amended 23 Motion). (Doc.# 5.) The Amended Motion will be denied with leave to file a second 24 amended motion. 25 26 27 28 1 Movant has since been transferred to the United States Prison, in Lompoc, California. 2 “Doc.#” refers to the docket number of filings in the civil case. JDDL Dockets.Justia.com 1 JDDL I. Failure to Comply with LRCiv. 7.1(b) 2 The Rules Governing Section 2255 Proceedings for the United States District Courts 3 allow the Court, by local rule, to prescribe a form to be used for filing a § 2255 motion. See 4 Rule 2(c), Rules Governing Section 2255 Proceedings, foll. 28 U.S.C. § 2255. Under this 5 Court’s local rule, Movant must use the court-approved form when he files a pro se motion 6 pursuant to 28 U.S.C. § 2255. See LRCiv 3.5(a). In addition, this Court’s local rules provide 7 that “[a]ll pleadings and other papers must be written in the English language[.]” LRCiv. 8 7.1(b). 9 Movant has filed an Amended Motion using the court-approved form. (Doc.# 5.) 10 Movant’s claims, however, are not written in English. For that reason, his Amended Motion 11 does not comply with LRCiv. 7.1(b). Therefore, the Amended Motion will be denied with 12 leave to file a second amended motion within 30 days. 13 II. Leave to Amend 14 Within 30 days, Movant may submit a second amended motion on the court-approved 15 form. The Clerk of Court will mail Movant a court-approved form to use for filing a second 16 amended motion. Movant must submit his second amended motion on the court-approved 17 form, in English, and sign it under penalty of perjury. If Movant fails to file a second 18 amended motion, in English, within 30 days from the date of filing of this Order, the Court 19 will dismiss this § 2255 action without further notice to Movant. If Movant fails to use the 20 court-approved form or to complete the form in English, the Court may strike the second 21 amended motion and dismiss this § 2255 action without further notice to Movant. 22 Movant must clearly designate on the face of the document that it is a “Second 23 Amended Motion.” The second amended motion must be retyped or rewritten in its entirety 24 on a court-approved form, in English, and may not incorporate any part of the prior motions 25 by reference. Movant must describe, in English, each ground for relief and the facts 26 supporting each ground. 27 An amended motion supersedes a prior motion. See Ferdik v. Bonzelet, 963 F.2d 28 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1546 -2- 1 (9th Cir. 1990). After amendment, the Court will treat prior motions as nonexistent. Ferdik, 2 963 F.2d at 1262. Any ground for relief that was raised in a prior motion is waived if it is 3 not raised in a second amended motion. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 4 1987). 5 III. 6 A. 7 Movant must file and serve a notice of a change of address in accordance with Rule 8 83.3(d) of the Local Rules of Civil Procedure. Movant must not include a motion for other 9 relief with a notice of change of address. Failure to comply may result in dismissal of this 10 Address Changes § 2255 action. 11 B. 12 Movant must submit an additional copy of every filing for use by the Court. See 13 LRCiv 5.4. Failure to comply with this requirement may result in the filing being stricken 14 without further notice to Movant. Copies 15 C. 16 If Movant fails to timely comply with every provision of this Order, including these 17 warnings, the Court may dismiss this § 2255 action without further notice. See Ferdik, 963 18 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order 19 of the Court). 20 IT IS ORDERED: 21 (1) Possible Dismissal Movant’s “[Amended] Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside 22 or Correct Sentence by a Person in Federal Custody” (Doc.# 5 in CV08-1352-PHX-SMM 23 (MEA)) is denied with leave to amend. Movant has 30 days from the date of filing of this 24 Order to file a second amended motion in compliance with this Order. 25 JDDL Warnings (2) If Movant fails to file a second amended motion within 30 days, the Clerk of 26 Court must, without further notice, enter a judgment of dismissal of this § 2255 action, 27 without prejudice. 28 (3) The Clerk of Court must mail Movant a court-approved form for filing a -3- 1 Motion to Vacate, Set Aside or Correct Sentence By a Person in Federal Custody (28 U.S.C. 2 § 2255). 3 DATED this 11th day of September, 2008. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL -4- Instructions for Filing a Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (Motion Under 28 U.S.C. § 2255) in the United States District Court for the District of Arizona 1. Who May Use This Form. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You also may use this form to challenge a federal judgment that imposed a sentence to be served in the future. You are asking for relief from the conviction or the sentence. This form is your motion for relief. In this motion, you may challenge only one judgment. If you want to challenge more than one judgment, you must file a separate motion for each judgment. This form should not be used in death penalty cases. If you were sentenced to death, you are entitled to the assistance of counsel and you should request the appointment of counsel. 2. The Form. Local Rule of Civil Procedure (LRCiv) 3.5(a) requires that motions to vacate must be filed on the court-approved form. The form must be typed or neatly handwritten. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages. The form, however, must be completely filled in to the extent applicable. You do not need to cite law. If you want to file a brief or arguments, you must attach a separate memorandum. 3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. 4. No Filing Fee. No fee is required with this motion. 5. Original and Judge’s Copy. You must send an original and one copy of your motion and of any other document submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten. 6. Where to File. You must file the form in the United States District Court that entered the judgment that you are challenging. When you have completed the form, mail the original and one copy to the Clerk of the United States District Court at the division where you were sentenced: OR Phoenix & Prescott Divisions: U.S. District Court Clerk U.S. Courthouse, Suite 130 401 West Washington Street, SPC 10 Phoenix, Arizona 85003-2119 Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street Tucson, Arizona 85701-5010 7. Change of Address. You must immediately notify the Court and respondents in writing of any change in your mailing address. Failure to notify the Court of any change in your mailing address may result in the dismissal of your case. Revised 3/9/07 1 8. Certificate of Service. You must provide the respondent with a copy of any document you submit to the Court (except the initial motion to vacate). Each original document (except the initial motion to vacate) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the respondent and the address to which it was mailed. Fed. R. Civ. P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. A certificate of service should be in the following form: I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Respondent (Signature) 9. Amended Motion to Vacate. If you need to change any of the information in the initial motion to vacate, you must file an amended motion. The amended motion must be written on the court-approved motion to vacate form. You may file one amended motion without leave (permission) of Court before the respondent has answered your original motion to vacate. See Fed. R. Civ. P. 15(a). After the respondent has filed an answer, you must file a motion for leave to amend and lodge (submit) a proposed amended motion to vacate. LRCiv 15.1. An amended motion may not incorporate by reference any part of your prior motion. LRCiv 15.1(a)(2). Any grounds not included in the amended motion to vacate are considered dismissed. 10. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion. 11. Grounds for Relief. You must raise all grounds for relief that relate to this conviction or sentence. Any grounds not raised in this motion will likely be barred from being raised at a later date. FINAL NOTE You should follow these instructions carefully. Failure to do so may result in your motion being stricken or dismissed by the Court. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the motion is being continued and number all pages. 2 Name and Prisoner/Booking Number Place of Confinement Mailing Address City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, Plaintiff, vs. (Full name of Movant. Include the name under which you were convicted.) Defendant/Movant. ) ) ) ) ) ) , ) ) ) ) ) ) No. CR (Enter your criminal case number) No. CV (To be supplied by the Clerk) MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY 1. (a) Name and location of court that entered the judgment of conviction you are challenging: (b) Criminal docket or case number: 2. Date of judgment of conviction: 3. In this case, were you convicted on more than one count or crime? Yes G No G 4. Identify all counts and crimes for which you were convicted and sentenced in this case: Revised 3/9/07 1 510 5. Length of sentence for each count or crime for which you were convicted in this case: 6. (a) What was your plea? Not guilty Guilty Nolo contendere (no contest) G G G (b) If you entered a guilty plea to one count or charge, and a not guilty plea to another count or charge, give details: Jury G (c) If you went to trial, what kind of trial did you have? (Check one) Yes G 7. Did you appeal from the judgment of conviction? Judge only G No G If yes, answer the following: (a) Date you filed: (b) Docket or case number: (c) Result: (d) Date of result: (e) Grounds raised: Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court. 8. Did you file a petition for certiorari in the United States Supreme Court? If yes, answer the following: (a) Date you filed: 2 Yes G No G (b) Docket or case number: (c) Result: (d) Date of result: (e) Grounds raised: Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court. 9. Other than the direct appeals listed above, have you filed any other petitions, applications or motions concerning this judgment of conviction in any court? Yes G No G If yes, answer the following: (a) First petition, application or motion. (1) Date you filed: (2) Name of court: (3) Nature of the proceeding: (4) Docket or case number: (5) Result: (6) Date of result: (7) Grounds raised: Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court. (b) Second petition, application or motion. (1) Date you filed: 3 (2) Name of court: (3) Nature of the proceeding: (4) Docket or case number: (5) Result: (6) Date of result: (7) Grounds raised: Attach, if available, a copy of any brief filed on your behalf and a copy of the decision by the court. (c) Did you appeal the action taken on your petition, application or motion? Yes G No G (2) Second petition: Yes G No G (1) First petition: (d) If you did not appeal from the action your petition, application or motion, explain why you did not: 12. For this motion, beginning on the next page, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. CAUTION: If you fail to set forth all the grounds in this motion, you may be barred from presenting additional grounds at a later date. 4 GROUND ONE: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.): (b) Did you present the issue raised in Ground One to the court of appeals? (c) If you did not raise this issue in a direct appeal, explain why: 5 Yes G No G GROUND TWO: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.): (b) Did you present the issue raised in Ground Two to the court of appeals? (c) If you did not raise this issue in a direct appeal, explain why: 6 Yes G No G GROUND THREE: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.): (b) Did you present the issue raised in Ground Three to the court of appeals? (c) If you did not raise this issue in a direct appeal, explain why: 7 Yes G No G GROUND FOUR: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.): (b) Did you present the issue raised in Ground Four to the court of appeals? (c) If you did not raise this issue in a direct appeal, explain why: 8 Yes G No G Please answer these additional questions about this motion: 13. Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court for the judgment you are challenging? Yes G No G If yes, give the date of filing, the name and location of the court, the docket or case number, the type of proceeding, and the issues raised: 14. Do you have any future sentence to serve after you complete the sentence imposed by the judgment you are challenging? Yes G No G If yes, answer the following: (a) Name and location of the court that imposed the sentence to be served in the future: (b) Date the sentence was imposed: (c) Length of the sentence: (d) Have you filed, or do you plan to file, any motion, petition or application that challenges the judgment or sentence to be served in the future? Yes G No G 15. TIMELINESS OF MOTION: If your judgment of conviction challenged in this motion became final more than one year ago, you must explain why the one-year statute of limitations in 28 U.S.C. § 2255 does not bar your motion.* *Section 2255 provides in part that: A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of — (1) the date on which the judgment of conviction becomes final; 9 (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making such a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 16. Movant asks that the Court grant the following relief: or any other relief to which Movant may be entitled. (Money damages are not available in § 2255 cases.) I declare under penalty of perjury that the foregoing is true and correct and that this Motion under 28 U.S.C. § 2255 was placed in the prison mailing system on (month, day, year). Signature of Movant Signature of attorney, if any Date 10
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