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Abdullah v. Superior Court of the State of Arizona

United States District Court, D. Arizona

July 16, 2018

Naji Munaji Talib Abdullah, Petitioner,
v.
Superior Court of the State of Arizona, et al., Respondents.

          ORDER

          HONORABLE G. MURRAY SNOW UNITED STATES DISTRICT JUDGE.

         On June 4, 2018, Petitioner Naji Munaji Talib Abdullah, who is confined in the Arizona State Prison Complex-Lewis in Buckeye, Arizona, filed a pro se Petition for Special Action (“Petition”) (Doc. 1), which the Court will construe as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, and a document entitled “Legal Que[]stion.” On June 11, 2018, Petitioner filed a Motion to Correct Petition (Doc. 6); on July 9, 2018, he lodged an Amended Petition for Special Action.

         I. Failure to Comply with Local Rule 3.5(b)

         Rule 3.5(b) of the Local Rules of Civil Procedure requires that “[i]f a habeas corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall file an application to proceed in forma pauperis on a form approved by the Court, accompanied by a certification of the warden or other appropriate officer of the institution in which the petitioner is confined as to the amount of money or securities on deposit to the petitioner's credit.” Rule 3.5(b) also requires payment of the $5.00 filing fee if a petitioner has in excess of $25.00 in his inmate account.

         Because Petitioner has not paid the $5.00 filing fee or filed an Application to Proceed In Forma Pauperis, Petitioner will be given 30 days from the date this Order is filed to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis using the form included with this Order.

         II. Petition not on Court-Approved Form

         Pursuant to Rule 3.5(a) of the Local Rules of Civil Procedure, Petitioner is required to use a court-approved form when he files a pro se petition pursuant to 28 U.S.C. § 2254. The Court may, in its discretion, forgo the requirement that a petitioner use a court-approved form. See LRCiv 3.5(a). The Court will require use of the court-approved form because Petitioner's Petition does not substantially comply with the court-approved form. The Court will dismiss the Petition without prejudice and with leave to file an amended petition on a court-approved form within 30 days.

         III. Motion to Correct Petition

         In his Motion to Correct Petition, Petitioner states that he would like to correct page 1, line 11 of his Petition for Special Action and submit another exhibit. The Court will deny without prejudice Petitioner's Motion to Correct Petition because the Amended Petition for Special Action is not on the court-approved form. If Petitioner files an amended petition on a court-approved form, he can correct the caption and include any relevant exhibits with his amended petition.

         IV. Leave to Amend

         Within 30 days, Petitioner may submit an amended petition on the court-approved form. The Clerk of Court will mail Petitioner a court-approved form to use for filing a § 2254 Petition. If Petitioner fails to use the court-approved form, the Court may strike the amended petition and dismiss this action without further notice to Petitioner.

         Petitioner's amended petition should clearly set out each claim Petitioner is making. 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.

         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. Any ground for relief that was raised in the original Petition and that was voluntarily dismissed or was dismissed without prejudice is waived ...


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