Johnson v. Lothrop

1 ASH 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Antonyo Dewayne Johnson, No. CV 20-00908-PHX-ROS (ESW) 10 Petitioner, v. ORDER William W. Lothrop, 13 Respondent.

15 Petitioner Antonyo Dewayne Johnson, who is confined in the Federal Correctional Institution in Phoenix, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) and, after being directed to do so, has paid the filing fee.

19 I. Petition 20 In his Petition, Petitioner names William W. Lothrop as Respondent. However, Petitioner fails to identify what he was convicted of or in which court, what conviction or sentence (or portions thereof) he is challenging, or virtually any of the procedural history of his criminal case. Indeed, the Petition itself is almost entirely blank, and the attached Memorandum in support of his Petition similarly fails to provide the information called for on the form. As such, the Court is unable to evaluate the merits, if any, of the Petition.

26 Accordingly, the Petition will be dismissed without prejudice and with leave to amend so that Petitioner can cure these deficiencies.

28 . . . .

1 II. Leave to Amend 2 For the foregoing reasons, Petitioner’s Petition will be dismissed with leave to amend. Within 30 days, Petitioner may submit a first amended petition to cure the deficiency outlined above. The Clerk of Court will mail Petitioner a court-approved form to use for filing an amended petition.

6 If Petitioner 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.

9 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.

13 An amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 F.2d 14 1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 15 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 if it is not alleged in an amended petition. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc).

20 Petitioner should take note that although a petitioner may attach a memorandum of points and authorities in support of an amended § 2241 petition, he may not bypass the court-approved form and simply refer the Court to a memorandum without first listing his grounds for relief, supporting facts, and other required information in his amended petition.

24 Petitioner should be aware that a motion to vacate sentence pursuant to 28 U.S.C. § 2255 is generally the appropriate method for challenging a federally imposed conviction or sentence, including a challenge that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a); Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). A § 2241 petition for writ of habeas corpus is not a substitute for a motion under § 2255.

3 McGhee v. Hanberry, 604 F.2d 9, 10 (5th Cir. 1979).

4 The Court will not consider a § 2241 petition by a prisoner authorized to apply for § 2255 relief “if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.”

8 28 U.S.C. § 2255(e); United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997). This exception is narrow. Ivy v. Pontesso, 328 F.3d 1057, 1059 (9th Cir. 2003).

10 The § 2255 remedy is not inadequate or ineffective merely because the statute of limitations bars Petitioner from filing a motion under § 2255, the sentencing court has denied relief on the merits, or § 2255 prevents Petitioner from filing a second or successive petition. See Ivy, 328 F.3d at 1059; Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999); Charles v. Chandler, 180 F.3d 753, 758 (6th Cir. 1999); Tripati, 843 F.2d at 1162. The § 2255 remedy is inadequate or ineffective “when a petitioner (1) makes a claim of actual innocence, and (2) has not had an unobstructed procedural shot at presenting that claim.”

17 Harrison v. Ollison, 519 F.3d 952, 959 (9th Cir. 2008) (quoting Stephens v. Herrera, 464 18 F.3d 895, 898 (9th Cir. 2006)). In determining whether a petitioner has had an unobstructed procedural shot to pursue his claim, the court considers “(1) whether the legal basis for petitioner’s claim ‘did not arise until after he had exhausted his direct appeal and first § 2255 motion;’ and (2) whether the law changed ‘in any way relevant’ to petitioner’s claim after that first § 2255 motion.” Harrison, 519 F.3d at 960 (quoting Ivy, 328 F.3d at 1060- 61). The burden of coming forward with evidence affirmatively showing the inadequacy or ineffectiveness of the § 2255 remedy rests with the petitioner. McGhee, 604 F.2d at 10; Redfield v. United States, 315 F.2d 76, 83 (9th Cir. 1963).

26 III. Warnings 27 A. Address Changes 28 If Petitioner’s 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.

3 Failure to comply may result in dismissal of this action.

4 B. Possible Dismissal 5 If Petitioner fails to timely comply with every provision of this Order, including 6| 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).

9) ITIS ORDERED: 10 (1) _ Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is dismissed | without prejudice, with leave to amend. Petitioner has 30 days from the date this Order | is filed to file an amended petition.

13 (2) The Clerk of Court must enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner, if Petitioner fails to submit an amended | petition on the court-approved form within 30 days from the filing date of this Order and deny any pending unrelated motions as moot.

17 (3) | The Clerk of Court must send Petitioner the current court-approved form for | filing a “Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal | Custody (Non-Death Penalty).”

20 Dated this 11th day of June, 2020.

21 fo - 22 ‘ — .

Senior United States District Judge -4- mnr Instructions for Filing a Petition Under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in Federal Custody in the United States District Court for the District of Arizona 1. Who May Use This Form. If you are detained in Arizona, you may use this form to challenge your detention by federal immigration authorities or to challenge the execution of your federal sentence by the United States Bureau of Prisons. You are asking for release or earlier release on the grounds that your detention or future detention violates the United States Constitution or other federal law. You should not use this form to challenge a state or federal judgment of conviction or sentence. If you are challenging a conviction or sentence entered against you by a state court, you should file a petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody. If you are challenging a judgment of conviction or sentence entered by a federal court, you should file a motion under 28 U.S.C. § 2255 to vacate sentence in the federal court that entered the judgment. Any claim that may be brought or has already been brought in a motion under 28 U.S.C. § 2255 may not be brought using this form unless it appears that the § 2255 motion is inadequate or ineffective to test the legality of your detention. This form should not be 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 the court-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 plus one 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 the division where you are detained. See LRCiv 5.1(a). If you are detained in Maricopa, Pinal, Yuma, La Paz, or Gila County, you should file your petition in the Phoenix Division. If you are detained in Apache, Navajo, Coconino, Mohave, or Yavapai County, you should file your petition in the Prescott Division. If you are detained in Pima, Cochise, Santa Cruz, Graham, or Greenlee County, you should 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 $5.00 filing fee or the application to proceed in forma pauperis to: Phoenix & Prescott Divisions: OR Tucson Division: U.S. District Court Clerk U.S. District Court Clerk U.S. Courthouse, Suite 130 U.S. Courthouse, Suite 1500 West Washington Street, SPC 10 405 West Congress Street Phoenix, Arizona 85003-2119 Tucson, Arizona 85701-5010 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 address may 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: I hereby certify that a copy of the foregoing document was mailed this (month, day, year) to: Name: Address: Attorney for Respondent(s) (Signature) 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 petition for writ of habeas corpus form. You may amend your pleading once without leave (permission) of Court within 21 days after serving it or within 21 days after any respondent has filed an answer, whichever is earlier. See Fed. R. Civ. P. 15(a). Thereafter, 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 not included in the amended petition are considered dismissed.

10. Exhibits. If available, you should attach a copy of all federal court and administrative written decisions regarding the detention you are challenging. You should not submit any other exhibits with the petition. Instead, the relevant information should be paraphrased 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.

12. Exhaustion. In order to proceed with this petition in federal court, you ordinarily must exhaust any administrative remedies available to you. If you did not fairly present each of your grounds to the appropriate administrative agencies, your petition may be dismissed.

FINAL NOTE 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.

Name and Prisoner Number/Alien Registration Number ___________________________________________ Place of Confinement ___________________________________________ Mailing Address ___________________________________________ City, State, Zip Code (Failure to notify the Court of your change of address may result in dismissal of this action.)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _______________________________________ , (Full Name of Petitioner) ) Petitioner, CASE NO. __________________________________ (To be supplied by the Clerk) v.

_______________________________________ , PETITION UNDER 28 U.S.C. § 2241 (Name of Warden, Jailor or authorized person FOR A WRIT OF HABEAS CORPUS having custody of Petitioner) BY A PERSON IN FEDERAL CUSTODY Respondent.

PETITION 1. What are you challenging in this petition?

G Immigration detention G Bureau of Prisons sentence calculation or loss of good-time credits G Probation, parole or supervised release G Other (explain):

2. (a) Name and location of the agency or court that made the decision you are challenging:

(b) Case or opinion number: (c) Decision made by the agency or court:

(d) Date of the decision: 3. Did you appeal the decision to a higher agency or court? Yes G No G If yes, answer the following: (a) First appeal: (1) Name of the agency or court: (2) Date you filed: (3) Opinion or case number: (4) Result: (5) Date of result: (6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(b) Second appeal: (1) Name of the agency or court: (2) Date you filed: (3) Opinion or case number: (4) Result: (5) Date of result: (6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(c) Third appeal: (1) Name of the agency or court: (2) Date you filed: (3) Opinion or case number: (4) Result: (5) Date of result: (6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

4. If you did not appeal the decision to a higher agency or court, explain why you did not:

5. Other than the appeals listed above, have you filed any other petitions, applications or motions concerning the issues raised in this petition? Yes G No G If yes, answer the following: (a) Name of the agency or court: (b) Date you filed: (c) Opinion or case number: (d) Result: (e) Date of result: (f) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

6. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.

CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available administrative remedies on each ground on which you request action by the federal court. (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground One? Yes G No G (c) If yes, did you present the issue to: G The Board of Immigration Appeals G The Office of General Counsel G The Parole Commission G Other: (d) If you did not exhaust all available administrative remedies relating to Ground One, explain why: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground Two? Yes G No G (c) If yes, did you present the issue to: G The Board of Immigration Appeals G The Office of General Counsel G The Parole Commission G Other: (d) If you did not exhaust all available administrative remedies relating to Ground Two, explain why: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground Three? Yes G No G (c) If yes, did you present the issue to: G The Board of Immigration Appeals G The Office of General Counsel G The Parole Commission G Other: (d) If you did not exhaust all available administrative remedies relating to Ground Three, explain why: (a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you exhaust all available administrative remedies relating to Ground Four? Yes G No G (c) If yes, did you present the issue to: G The Board of Immigration Appeals G The Office of General Counsel G The Parole Commission G Other: (d) If you did not exhaust all available administrative remedies relating to Ground Four, explain why: 7. Are you challenging your conviction or sentence in any of the grounds raised above? Yes G No G (Claims challenging a federal conviction or sentence may only be raised in a motion under 28 U.S.C. § 2255, unless the § 2255 motion is legally inadequate or ineffective.)

If yes, answer the following: (a) Have you filed a motion under 28 U.S.C. § 2255? Yes G No G If yes, answer the following: (1) Name of court: (2) Case number: (3) Opinion or case number: (4) Result: (5) Date of result: (6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(b) Explain why the remedy under § 2255 is inadequate or ineffective:

8. If this case concerns immigration removal proceedings, answer the following: (a) Date you were taken into immigration custody: (b) Date of removal or reinstatement order: (c) Did you file an appeal with the Board of Immigration Appeals? Yes G No G (1) Date you filed: (2) Case number: (3) Result: (4) Date of result: (5) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

(d) Did you file an appeal with the federal court of appeals? Yes G No G (1) Name of the court: (2) Date you filed: (3) Case number: (4) Result: (5) Date of result: (6) Issues raised:

Attach, if available, a copy of any brief filed on your behalf and a copy of the decision.

9. Petitioner asks that the Court grant the following relief:

or any other relief to which Petitioner may be entitled. (Money damages are not available in habeas corpus cases.)

I declare under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on (month, day, year). __________________________________ Signature of Petitioner

___________________________________ ________________________________ Signature of attorney, if any Date