Perry v. Ward

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION KYLE PERRY, ) ) Petitioner, ) ) v. ) CV423-044 ) TIMOTHY WARD, ) COMMISSIONER, ) ) Respondent. ) ORDER The Court previously directed pro se Petitioner Kyle Perry to amend his 28 U.S.C. § 2254 Petition to name his present custodian as respondent. See doc. 5. He has complied. See doc. 6. Although he now identifies Warden Danforth of Coffee County Correctional Facility as the Respondent, see id. at 1, the Amended Petition does not reassert any of the grounds for relief, see id. at 5. It also appears that several pages of the form petition are missing. See id. at 5-6 (skipping from the form’s page 6 to the form’s page 16). Perry’s omission of any substantive allegations from his Amended Petition is a problem because an amended petition supersedes the original. See Taylor v. Davis, 2009 WL 2900347, at *1 n. 1 (“Petitioner’s amended petition supersedes and replaces in its entirety the original petition.” (citations omitted)); see also, e.g., Calhoun v. Bergh, 769 F.3d 409, 410 (6th Cir. 2014) (“[A]fter [§ 2254 petitioner] filed his amended petition, only that petition remained pending before the district court.”).

Accordingly, Perry is DIRECTED to file a Second Amended Petition by no later than May 5, 2023. The Clerk is DIRECTED to include a copy of Form AO 242 (Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2254) along with this Order for Perry’s convenience.

To be clear: the Second Amended Petition will supersede all prior versions of Perry’s petition and must, therefore, be complete in itself.

Once the Second Amended Petition is filed, the prior versions will no longer serve any function in this case. Perry is advised that failure to amend within the time permitted will result in a recommendation of dismissal. See Retic, 215 F. App’x at 965.

SO ORDERED, this 14th day of April, 2028.

Leight A ag Christopher L. Ray United States Magistrate Judge Southern District of Georgia