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United States v. Sarabia-Labrador

United States District Court, Ninth Circuit

November 19, 2013

United States of America, Plaintiff,
v.
Felipe Sarabia-Labrador, Defendant/Movant.

ORDER

JAMES A. TEILBORG, Senior District Judge.

Movant Felipe Sarabia-Labrador, who is confined in the Rivers Correctional Institution in Winton, North Carolina, filed a pro se letter to the Clerk of the Court requesting forms for filing a Motion to Vacate pursuant to 28 U.S.C. § 2255 (the "letter"). To faciliate consideration of the letter, the Clerk of the Court labeled the letter a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 on the Court's docket and opened a civil case in connection with the letter. The Court will deny the letter with leave to amend.

I. The Court-Approved Form

The Rules Governing Section 2255 Proceedings for the United States District Courts allow the Court, by local rule, to prescribe a form to be used for filing a § 2255 motion. See Rule 2(c), Rules Governing Section 2255 Proceedings, foll. 28 U.S.C. § 2255. Under this Court's local rule, Movant must use the court-approved form when filing a pro se motion pursuant to 28 U.S.C. § 2255. See LRCiv 3.5(a). Movant has not used the court-approved form and, indeed, requests the court-approved form in his letter. Therefore, the letter, which the Clerk of the Court designated to be a motion, will be denied with leave to file an amended motion within 30 days.

II. Leave to Amend

Within 30 days, Movant may submit an amended motion on the court-approved form. The Clerk of Court will mail Movant a court-approved form to use for filing an amended motion. Movant must submit the amended motion on the court-approved form and sign it under penalty of perjury. If Movant fails to file an amended motion within 30 days from the date of filing of this Order, the Court will dismiss this § 2255 action without further notice to Movant. If Movant fails to use the court-approved form, the Court may strike the amended motion and dismiss this § 2255 action without further notice to Movant.

Movant must clearly designate on the face of the document that it is an "Amended Motion." 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. Movant must describe each ground for relief and the facts supporting each ground.

An amended motion supersedes an original motion. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co. , 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court will treat an original motion as nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the letter and that was voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in an amended motion. Lacey v. Maricopa County , 693 F.3d 896, 928 (9th Cir. 2012

III. Warnings

A. Address Changes

Movant 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. Movant must not include a motion for other relief with a notice of change of address. Failure to comply may result in dismissal of this § 2255 action.

B. Copies

Movant must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply with this requirement may result in the filing being stricken without further notice to Movant.

C. Possible Dismissal

If Movant fails to timely comply with every provision of this Order, including these warnings, the Court may dismiss this § 2255 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) Movant's Letter to the Clerk of the Court (Doc. 1 in CV 13-2193-PHX-JAT (SPL) is denied with leave to amend. Movant has 30 days for the date of filing of this Order to file an amended motion in compliance with this Order.

(2) If Movant fails to file an amended motion within 30 days, the Clerk of Court must, without further notice, terminate Document 201 in CR 12-417-001-PHX JAT and enter a judgment of dismissal of the civil action opened in connection with this § 2255 action (CV 13-2193-PHX-JAT (SPL)

(3) The Clerk of Court must mail Movant a 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).


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