June 10, 2013
James Leon Walker, Petitioner,
Charles L. Ryan, et al., Respondents.
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. § 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).
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 alleged in an amended petition are waived. King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
A. Address Changes
Petitioner must file and serve a notice of a change of address in accordance with Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this action.
Because Petitioner is currently confined in ASPC-Eyman and this case is subject to General Order 13-11, Petitioner is not required to submit an additional copy of every filing for use by the Court, as would ordinarily be required by Local Rule of Civil Procedure 5.4. If Petitioner is transferred to a prison other than ASPC-Eyman, he will be notified of the requirements regarding copies for the Court that are required for inmates whose cases are not subject to General Order 13-11.
C. Possible Dismissal
If Petitioner fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) Petitioner's Application to Proceed In Forma Pauperis (Doc. 6) is granted.
(2) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) is dismissed without prejudice, with leave to amend. Petitioner has 30 days from the date this Order is filed to file an amended petition.
(3) The Clerk of Court must enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner, if Petitioner fails to submit an amended petition on the court-approved form within 30 days from the filing date of this Order.
(4) The Clerk of Court must send Petitioner the current court-approved form for filing a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)."