November 4, 2013
Brian Odell Hopson, Petitioner,
Charles L. Ryan, et al., Respondents.
DAVID G. CAMPBELL, District Judge.
On July 11, 2013, Petitioner Brian Odell Hopson, who is confined in the Arizona State Prison Complex-Tucson, filed a "Motion for Extension of Time to File Petition for Writ of Habeas Corpus" (Doc. 1). On August 12, 2013, Petitioner filed an Application to Proceed In Forma Pauperis, lodged a pro se Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody, and lodged a Memorandum in Support of Writ of Habeas Corpus.
I. Motion for Extension of Time
In his Motion for Extension of Time, Petitioner asks that the Court grant him an additional 30 to 90 days within which to file a habeas petition. Petitioner is essentially asking the Court to toll the statute of limitations and deem Petitioner's Petition as timely filed. The Court will not rule on the issue of whether Petitioner filed within the statue of limitations before Respondents have been served. The Court will therefore deny the Motion for Extension of Time.
The Court will direct the Clerk of Court to file the Petition and Memorandum in Support with the filing date of August 12, 2013, the date the Court received the Petition.
II. Application to Proceed In Forma Pauperis
Petitioner's Application to Proceed 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 challenges his conviction in Maricopa County Superior Court, case number CR XXXX-XXXXXX-XXXDT for four counts of aggravated assault. Petitioner was sentenced to a 20-year term of imprisonment. Petitioner names Charles Ryan as Respondent and the Arizona Attorney General as an additional Respondent.
Petitioner raises two claims for relief:
(1) "Erroneous prejudicial procedural-denial with respect to Ariz. Court of Appeals, Div. 1, special action petition, ... being denied review in Ariz. Supreme Court, ... unduly denying defendant relief on the merits put-forth theretofore. As such constitutes unreasonable determination of the factual evidence represented thereupon, and misapplication contrary to constitution due process/equal protection of laws"; and
(2) "Erroneous prejudicial procedural-denial, with respect to Ariz. Supreme Court dismissing new petition for special action, ... thereby denying defendant du[e] relief on the merits of U.S. Constitutional/Federal and state law issues put forth."
IV. Dismissal with Leave to Amend
Pursuant to 28 U.S.C. § 2254, "a district court shall entertain an application for writ of habeas corpus in 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." In this case, Petitioner alleges that the Arizona Court of Appeals and Arizona Supreme Court failed to follow state law when declining review of his state actions. Petitioner does not describe how this denial of review violated his federal constitutional rights, nor does he allege that his conviction and sentence were in violation of his federal constitutional rights. Accordingly, the Court will dismiss the Petition with leave to amend.
Within 30 days, Petitioner may submit a first amended petition to cure the deficiencies outlined above. The Clerk of Court will mail Petitioner a court-approved form to use for filing an amended petition.
Petitioner's amended petition should clearly set out each claim Petitioner is making and should also provide information as to how Petitioner has first exhausted his state-court remedies as to each and every claim. If Petitioner cannot fit all of his supporting facts or arguments in favor of a particular ground on the court-approved form, then he may continue on an attachment, but each matter on any attachment must be clearly referenced to a particular ground on the court-approved form. Petitioner must attach supporting exhibits and documents to the end of his 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. Accordingly, grounds for relief alleged in the 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.
Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff.
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 July 11, 2013 Motion for Extension of Time (Doc. 1) is denied.
(2) The Clerk of Court must file the Petition for Writ of Habeas Corpus and Memorandum in Support of Petition for Writ of Habeas Corpus with the filing date of August 12, 2013.
(3) Petitioner's Application to Proceed In Forma Pauperis (Doc. 3) is granted.
(4) The Petition is dismissed with leave to amend; Petitioner has 30 days from the date this Order is signed to file an amended petition on a court-approved form.
(5) The Clerk of Court must enter a judgment of dismissal of this action without prejudice, without further notice to Petitioner, if Petitioner fails to file an amended petition within 30 days from the date this Order is signed.
(5) The Clerk of Court must provide Petitioner with a current, court-approved form for filing a "Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody."