United States District Court, D. Arizona
J. BRYAN United States District Judge.
August 22, 2016, Movant Ivory Crow, who is confined in the
Federal Correctional Institution-La Tuna in Anthony, Texas,
filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody.On September 6, 2016, Movant filed an
Amended § 2255 Motion (Doc. 4). The Court will deny the
Amended § 2255 Motion with leave to amend.
Amended § 2255 - Failure to Use the Court-Approved Form
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.
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 did not use the
court-approved form when filing his Amended § 2255
Court may, in its discretion, forgo the requirement that a
movant use a court-approved form. See LRCiv 3.5(a).
The Court will require use of the court-approved form because
Movant's Amended § 2255 Motion does not
substantially comply with the court-approved form. Therefore,
the Amended § 2255 Motion will be denied with leave to
file a second amended motion within 30 days.
Leave to Amend
30 days, Movant may submit a second 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 second amended motion on the
court-approved form and sign it under penalty of perjury. If
Movant fails to file a second 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 second amended motion and dismiss this § 2255
action without further notice to Movant.
must clearly designate on the face of the document that it is
a “Second Amended Motion.” The second 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 or Amended § 2255 Motion by reference.
Movant must describe each ground for relief and the facts
supporting each ground. . . . .
second amended motion supersedes the original Motion and the
Amended § 2255 Motion. See Ferdik, 963 F.2d at
1262; Hal Roach Studios, 896 F.2d at 1546. After
amendment, the Court will treat the original Motion and
Amended § 2255 Motion as nonexistent. Ferdik,
963 F.2d at 1262. Any ground for relief that was raised in
the original Motion or the Amended § 2255 Motion and
that was voluntarily dismissed or was dismissed without
prejudice is waived if it is not alleged in a second amended
motion. Lacey v. Maricopa County, 693 F.3d 896, 928
(9th Cir. 2012) (en banc).
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. ...