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Walker v. Ryan

United States District Court, Ninth Circuit

June 10, 2013

James Leon Walker, Petitioner,
v.
Charles L. Ryan, et al., Respondents.

ORDER

DAVID G. CAMPBELL, District Judge.

On March 7, 2013, Petitioner James Leon Walker, who is confined in the Arizona State Prison Complex-Eyman in Florence, Arizona, filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. ยง 2254 (Doc. 1). In an April 30, 2013 Order, the Court noted that Petitioner had not paid the filing fee or filed an Application to Proceed In Forma Pauperis. The Court gave Petitioner 30 days to either pay the filing fee or file an Application to Proceed.

On May 13, 2013, Petitioner filed an Application to Proceed In Forma Pauperis (Doc. 6). The Court will grant the Application to Proceed and will dismiss the Petition without prejudice and with leave to amend.

I. Application to Proceed In Forma Pauperis

Petitioner's Application to Proceed In Forma Pauperis indicates that his inmate trust account balance is less than $25.00. Accordingly, the Application to Proceed In Forma Pauperis will be granted. See LRCiv 3.5(b).

II. Petition

Petitioner was convicted in Maricopa County Superior Court, case number CR-2000-012987, of attempted sexual conduct with a minor and attempted molestation of a child. He was sentenced to a 15-year term of imprisonment and lifetime probation, respectively. Petitioner has named the Charles L. Ryan as Respondent and the Arizona Attorney General as an Additional Respondent.

Petitioner raises one ground for relief. He claims that newly discovered evidence "clearly shows [the] alleged victims were not in the State of Arizona for the crime to happen in the State of Arizona at that time. Petitioner is unlawfully imprisoned."

Section 2254(a), 28 U.S.C., requires the Court to "entertain an application for a writ of habeas corpus [o]n behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Absent from Petitioner's ground for relief is any statement that the Petitioner is in custody in violation of the Constitution or the laws or treaties of the United States. Thus, the Court lacks jurisdiction over this case and will dismiss it.

III. Leave to Amend

For the foregoing reasons, Petitioner's Petition will be dismissed for lack of jurisdiction. Within 30 days, Petitioner may submit a first amended petition to cure the deficiency outlined above. The Clerk of Court will mail Petitioner a court-approved form to use for filing an amended petition.

Petitioner is cautioned that if he fails to file his amended petition on the court-approved form included with this Order, it will be stricken and the action dismissed without further notice to Petitioner.

Petitioner is advised that the amended petition must be retyped or rewritten in its entirety on the court-approved form and may not incorporate any part of the original Petition by reference. Any amended petition submitted by Petitioner should be clearly designated as such on the face of the document.

An amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 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 an original petition which are not ...


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