No. CV 10-2393-PHX-DGC (LOA).United States District Court, D. Arizona.
February 15, 2011
DAVID CAMPBELL, District Judge
Petitioner Sihir Hassan Zihir, who is confined in the Arizona State Prison Complex, Central Unit, in Florence, Arizona, filed pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) In an order filed on December 21, 2010, the Court dismissed the Petition with leave to file an amended petition within 30 days. (Doc. 8.) The Court dismissed the Petition because Petitioner failed to allege the violation of a federal constitutional or statutory right and sent him the court-approved form for filing an amended petition. (Id. at 2.) Petitioner has filed a First Amended Petition, but did not use the court-approved form. (Doc. 11.) The Court will dismiss the First Amended Petition with leave to amend.
I. First Amended Petition
In his First Amended Petition, Petitioner alleges one ground for relief for violation of his Fourteenth Amendment rights based on the allegedly wrongful denial of parole or parole eligibility. He alleges the following: On August 7, 1984, Petitioner was sentenced to a
consecutive 25-year sentence pursuant to A.R.S. § 31-412(B). Petitioner contends that the Arizona Department of Corrections (ADC) and the Board of Executive Clemency have wrongfully extended his sentence or parole eligibility by 1,440 days. Petitioner names Charles L. Ryan as Respondent and Erin Warzecha, Chief Hearing Officer of the Arizona Board of Executive Clemency, as an Additional Respondent.
II. Failure to Use the Court-Approved Form
The Rules Governing Section 2254 Proceedings for the United States District Courts allow the Court, by local rule, to prescribe a form to be used for filing a § 2254 motion. See
Rule 2(d), Rules Governing Section 2254 Proceedings, foll. 28 U.S.C. § 2254. Under this Court’s local rule, Petitioner must use the court-approved form when filing a pro se petition pursuant to 28 U.S.C. § 2254. See LRCiv 3.5(a). Petitioner has not used the court-approved form.
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 First Amended Petition does not substantially comply with the court-approved form.
As the Court previously stated, federal habeas relief is available only on the ground that an inmate is in custody in violation of federal law, that is, the Constitution or federal
statutes or treaties. 28 U.S.C. § 2254(a). Further, under Rule 2(c) of the Rules Governing Section 2254 Cases, a habeas petition must state all grounds for relief that may be available to the petitioner, as well as the particular federal right allegedly violated, the facts supporting each ground, and the relief requested. While Petitioner alleges a violation of his federal constitutional rights under the Fourteenth Amendment in his First Amended Petition, he failed to allege the facts supporting that ground, such as information concerning his state conviction including the case number, the state court, the offense, and sentence. For the
reasons discussed, the First Amended Petition will be dismissed with leave to file a second amended petition within 30 days using the court-approved form petition.
III. Leave to Amend
For the foregoing reasons, the First Amended Petition will be dismissed with leave to amend. Within 30 days, Petitioner may submit a second amended petition to cure the deficiencies outlined above. The Clerk of Court will mail Petitioner a court-approved form for filing a second amended petition by a pro se petitioner. Failure to use the court-approved form may result in dismissal of an amended petition.
Petitioner must clearly designate on the face of the document that it is the “Second Amended Petition.” The second amendedpetition must be retyped or rewritten in its entirety on thecourt-approved form and may not incorporate any part of anyprevious petition by reference.
IV. Warnings 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.
Petitioner must serve Respondents, or counsel if an appearance has been entered, a copy of every document that he files. Fed.R.Civ.P. 5(a). Each filing must include a certificate stating that a copy of the filing was served. Fed.R.Civ.P. 5(d). Also, Petitioner must submit an additional copy of every filing for use by the Court. LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Petitioner.
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 v. Bonzelet,
963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to comply with any order of the Court).
IT IS ORDERED:
(1) The First Amended Petition is dismissed for the reasons stated above. (Doc. 11.) Petitioner has 30 days from the date this Order is filed to file a second amended petition in compliance with this Order.
(2) If Petitioner fails to file a second amended petition within 30 days, the Clerk of Court must, without further notice, enter a judgment of dismissal of this action.
(3) The Clerk of Court must mail Petitioner a court-approved form for filing a habeas petition by a pro se prisoner.
DATED this 15th day of February, 2011.
Instructions for Filing a Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in State Custody in the United States District Court for the District of Arizona
1. Who May Use This Form. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence on the grounds that your conviction or sentence violates the United States Constitution or other federal law. You also may use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal conviction or sentence, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. This form should notbe used in death penalty cases. If you were sentenced to death, you are entitled to the assistance of counsel and you should request the appointment of counsel.
2. The Form. Local Rule of Civil Procedure (LRCiv) 3.5(a)provides that habeas corpus petitions must be filed on thecourt-approved form. The form must be typed or neatly handwritten. All questions must be answered clearly and concisely in the appropriate space on the form. If needed, you may attach additional pages. The form, however, must be completely filled in to the extent applicable. You do not need to cite law. If you want to file a brief or arguments, you must attach a separate memorandum.
3. Your Signature. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury.
4. The Filing Fee. The filing fee for this action is $5.00. If you are unable to pay the filing fee, you may request permission to proceed in forma pauperis by completing and signing the Application to Proceed In Forma Pauperis provided with the petition form. You must have an official at the prison or jail complete the certificate at the bottom of the application form. If the amount of money in your account exceeds $25.00, you must pay the $5.00 filing fee. LRCiv 3.5(b).
5. Original and Judge’s Copy. You must send an original plusone copy of your petition and of any other document submitted to the Court. You must send one additional copy to the Court if you wish to have a file-stamped copy of the document returned to you. All copies must be identical to the original. Copies may be legibly handwritten.
6. Where to File. You should file your petition in thedivision where you were convicted. See LRCiv 5.1(b). If you are challenging a judgment of conviction entered in Maricopa, Pinal, Yuma, La Paz, or Gila County, file your petition in the Phoenix Division. If you are challenging a judgment of conviction entered in Apache, Navajo, Coconino, Mohave, or Yavapai County, file your petition in the Prescott Division. If you are challenging a judgment of conviction entered in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, file your petition in the Tucson Division. See LRCiv 5.1(b) and 77.1(a).
Mail the original and one copy of your petition with the $5.00filing fee or the application to proceed in forma pauperis to:
7. Change of Address. You must immediately notify the Court and respondents in writing of any change in your mailing address.Failure to notify the Court of any change in your mailing addressmay result in the dismissal of your case.
8. Certificate of Service. You must provide the respondents with a copy of any document you submit to the Court (except the initial petition and application to proceed in forma pauperis). Each original document (except the initial petition and application to proceed in forma pauperis) must include a certificate of service on the last page of the document stating the date a copy of the document was mailed to the respondents and the address to which it was mailed. Fed.R.Civ.P. 5(a), (d). Any document received by the Court that does not include a certificate of service may be stricken. A certificate of service should be in the following form:
9. Amended Petition. If you need to change any of the information in the initial petition, you must file an amended petition. The amended petition must be written on the court-approved form. You may file one amended petition without leave (permission) of Court before any respondent has answered your original petition. See Fed.R.Civ.P. 15(a). After any respondent has filed an answer, you must file a motion for leave to amend and lodge (submit) a proposed amended petition. LRCiv 15.1. An amended petition may not incorporate by reference any part of your prior petition. LRCiv 15.1(a)(2). Any grounds notincluded in the amended petition are considered dismissed.
10. Exhibits. If available, you should attach a copy of all state and federal court written decisions regarding the conviction you are challenging. Do not submit any other exhibits with the petition. Instead, you should paraphrase the relevant information in the petition.
11. Letters and Motions. It is generally inappropriate to write a letter to any judge or the staff of any judge. The only appropriate way to communicate with the Court is by filing a written pleading or motion.
a. Judgment Entered by a Single Court. You may challenge the judgment entered by only one court. Multiple counts which resulted in a judgment by the same court may be challenged in the same petition. If you wish to challenge judgments entered by more than one court, however, you must file separate petitions for each judgment.
b. Grounds for Relief. You must raise all grounds for relief that relate to this conviction or sentence. Any grounds not raised in this petition will likely be barred from being raised in any subsequent federal action.
c. Exhaustion. In order to proceed in federal court, you ordinarily must exhaust the remedies available to you in the state courts as to each claim on which you request action by the federal court. If you did not fairly present each of your grounds to the Arizona Court of Appeals, your petition may be dismissed. If you did not present one or more of your grounds to the Arizona Court of Appeals, explain why you did not.
You should follow these instructions carefully. Failure to do so may result in your petition being stricken or dismissed by the Court. All questions must be answered concisely in the proper space on the form. If you need more space, you may attach additional pages. But the form must be completely filled in to the extent applicable. If you attach additional pages, be sure to identify which section of the petition is being continued and number all pages.