Fitch v. Kellerman et al

Filing 5

ORDER That Petitioner's Application to Proceed In Forma Pauperis, attached to the petition, is denied without prejudice; That Petitioner's Motion To Appear Before the Grand Jury 4 is denied as premature; That the Petition is dismissed wit h leave to amend. Petitioner shall have 30 days from the date this Order is filed to file an Amended Petition using the court-approved form. That the Clerk of Court is directed to provide to Petitioner a current court approvedform for filing a petit ion for writ of habeas corpus pursuant to 28 U.S.C. 2254. That the Clerk of the Court is directed to provide to Plaintiff a court-approved form for filing an Application To Proceed In Forma Pauperis in a habeas action. Signed by Judge Stephen M McNamee on 2/2/07.(KMG)

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Fitch v. Kellerman et al Doc. 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 JDDL-K WO IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jim Fitch, Petitioner, vs. Kellerman, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 07-0113-PHX-SMM (ECV) ORDER Petitioner Jim Fitch, presently confined in the Arizona State Prison Complex in Buckeye, Arizona, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254. Petitioner has not paid the filing fee, nor has he filed a proper Application to Proceed In Forma Pauperis. Additionally, Petitioner has not filed his petition on the courtapproved form. The Court will allow thirty days for Petitioner to cure these deficiencies. I. Failure to Pay Filing Fee The filing fee for a habeas corpus action is $5.00. See 28 U.S.C. 1914. An inmate must pay the fee must if he has more than $25.00 in his inmate account. LRCiv 3.5(b). If he has less than $25.00 in his account, he may seek leave to proceed without payment of the filing fee by filing an Application to Proceed In Forma Pauperis. Petitioner has not paid the $5.00 filing fee, nor has he filed a proper Application to Proceed In Forma Pauperis on the court-approved form. 28 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 1 of 20 Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K The Court will grant Petitioner 30 days to cure this deficiency by either paying the fee or filing a signed and certified Application to Proceed In Forma Pauperis on the court-approved form. II. Failure To File on Court-Approved Form Rule 2(c), Rules Governing Section 2254 Cases In the United States District Courts, provides that "any district court may by local rule require that petitions filed with it shall be in a form prescribed by the local rule." Under this Court's local rule, Movant must use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. 2254. See LRCiv 3.2(a) requires that Petitioner use the court-approved form when he files a pro se petition pursuant to 28 U.S.C. 2254. Petitioner has not submitted the Petition on a courtapproved form. Accordingly, the Petition will be dismissed with leave to amend in order to allow Petitioner to comply with the Local Rules of Practice. III. Pending Motion Pending before the Court is Petitioner's Motion For Leave To Appear Before the Grand Jury (Doc. #4). This motion will be denied as premature. IV. Warnings A. Address Changes Plaintiff 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. Plaintiff 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. B. Copies Plaintiff must submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice to Plaintiff. C. Possible Dismissal -2Document 5 Filed 02/02/2007 Page 2 of 20 Case 2:07-cv-00113-SMM--ECV 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K If Plaintiff fails to timely comply with every provision of this Order, including 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). IT IS THEREFORE ORDERED: (1) That Petitioner's Application to Proceed In Forma Pauperis, attached to the petition, is denied without prejudice; (2) That Petitioner's Motion To Appear Before the Grand Jury (Doc. #4) is denied as premature; (3) That the Petition is dismissed with leave to amend. Petitioner shall have 30 days from the date this Order is filed to file an Amended Petition using the court-approved form. The Amended Petition must be retyped or rewritten in its entirety and may not incorporate any part of the original Petition by reference. Any Amended Petition submitted by the Petitioner should be clearly designated as such on the face of the document; (4) That Petitioner is granted thirty (30) days from the filing date of this order to file a signed and certified Application To Proceed In Forma Pauperis on the court-approved form or to pay the five dollar filing fee; (5) That the Clerk of Court shall dismiss this action without prejudice and without further notice to the Petitioner if he fails to file an Amended Petition and an Application To Proceed In Forma Pauperis or the five dollar filing fee within 30 days of the date this Order is filed; (6) That at all times during the pendency of this action, Petitioner shall immediately advise the Court of any change of address and its effective date. Such notice shall be captioned "NOTICE OF CHANGE OF ADDRESS." The notice shall contain only information pertaining to the change of address and its effective date. The notice shall not include any motions for any other relief. Failure to file a Notice of Change of Address may result in the dismissal of the action for failure to prosecute pursuant to Rule 41(b) of the Federal Rules of Civil Procedure; -3Document 5 Filed 02/02/2007 Page 3 of 20 Case 2:07-cv-00113-SMM--ECV 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JDDL-K (7) That the Clerk of Court is directed to provide to Petitioner a current courtapproved form for filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. (8) That the Clerk of the Court is directed to provide to Plaintiff a court-approved form for filing an Application To Proceed In Forma Pauperis in a habeas action. DATED this 2nd day of February, 2007. -4Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 4 of 20 INFORMATION AND INSTRUCTIONS FOR FILING A PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY PURSUANT TO 28 U.S.C. 2254 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA I. General Information About the Habeas Corpus Form: A. The Form. The petition for writ of habeas corpus by a person in state custody form is designed to help prisoners prepare a petition challenging their custody on the grounds that their state conviction or sentence violates the United States Constitution or other federal law. Local Rule of Civil Procedure 3.5(a) requires that habeas corpus petitions be filed on the courtapproved form. Your petition must be typewritten or legibly 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. This form should not be used in death penalty cases. B. Your Signature. The petition must be signed by the petitioner under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. Your signature must be an original signature, not a photocopy. C. The Filing Fee. Your petition for writ of habeas corpus must be accompanied by the $5.00 filing fee (checks or money orders should be made payable to the Clerk of the Court). If you are unable to pay the filing fee when the petition is filed, 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 prison account exceeds $25.00, you must pay the $5.00 filing fee. See LRCiv 3.5(b). D. Court Divisions. If you are challenging a state judgment of conviction entered in Maricopa, Pinal, Yuma, La Paz, or Gila county, you should file your petition in the Phoenix Division of the court. If you are challenging a state judgment of conviction entered in Apache, Navajo, Coconino, Mohave, or Yavapai county, you should file your petition in the Prescott Division of the court. If you are challenging a state judgment of conviction entered in Pima, Cochise, Santa Cruz, Graham, or Greenlee county, you should file your petition in the Tucson Division of the court. See LRCiv 5.1(b) and 77.1(a). You should mail THE ORIGINAL AND TWO COPIES of your petition with the $5.00 filing fee or the application to proceed in forma pauperis to: Phoenix & Prescott Divisions: U.S. District Court Clerk U.S. Courthouse, Suite 321 401 West Washington Street, SPC 10 Phoenix, Arizona 85003-2119 98-2254ins Revised 12/3/04 OR Tucson Division: U.S. District Court Clerk U.S. Courthouse, Suite 1500 405 West Congress Street Tucson, Arizona 85701-5010 1 Document 5 Filed 02/02/2007 Page 5 of 20 Case 2:07-cv-00113-SMM--ECV E. Certificate of Service on Respondents. You must furnish the respondents or their attorney with a copy of any document you submit to the court (except the initial petition and application to proceed in forma pauperis). Pursuant to Rules 5(a) and (d) of the Federal Rules of Civil Procedure, each original document (except the initial petition and application for leave 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 or their attorney and the address to which it was mailed. Any document received by the court which 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 day of (month) , (year) , to: Name: Address: Attorney for Defendant(s)/Respondent(s) (Signature) F. Original and Judge's Copy. You must file an original plus two copies of your petition. After the petition is filed, you must furnish an original and one copy of any other document submitted to the court. You must furnish one additional copy to the clerk if you wish to have a filestamped copy of the document returned to you. All copies must be identical to the original. G. Exhibits. You should attach a copy of all final state court written decisions and all written decisions by the Ninth Circuit Court of Appeals regarding the conviction you are challenging. You should not submit any other exhibits with the petition. Instead, the relevant information should be paraphrased in the petition. H. Change of Address. You must immediately notify the clerk and the opposing party or their attorney 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. I. 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 habeas corpus form. Local Rule of Civil Procedure 15.1(a)(2) prohibits any amended pleading from referencing any prior pleading. Further, any grounds not included in the amended petition are considered dismissed. J. Letters and Motions. It is generally inappropriate to write a letter to any of the District Judges, Magistrates Judges, or the staff of any of the judicial officers. The appropriate way to communicate with these persons is by filing a written pleading or motion. 2 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 6 of 20 II. Completing the Habeas Corpus Petition Form: HEADING: 1. Your Name and Address. Print your name, prison or jail inmate number, and mailing address on the lines provided in the upper left hand corner of the form. 2. Petitioner. Print your full name on the first line of the caption. 3. Respondent. Print the name of the director of the department of corrections, or the warden of the institution where you are confined, or some other official who has responsibility for your current custody. 4. Additional Respondent. Print the name of the state where the judgment of conviction you are challenging was entered on the blank line below the heading "THE ATTORNEY GENERAL OF THE STATE OF." PART A. JUDGMENT OF CONVICTION: Only one state judgment of conviction may be challenged in a single petition for writ of habeas corpus. Multiple counts which resulted in a single judgment of conviction may be challenged in the same petition for writ of habeas corpus. If you wish to challenge more than one judgment, however, you must file separate habeas corpus petitions for each judgment. Print all of the requested information regarding your judgment of conviction and sentence on the spaces provided. Part B. APPEALS: Answer each of the questions regarding your direct appeals in the state courts. If you filed appeals in the state courts, you must provide the requested information for each level of appeal on the spaces provided. Attach a copy of all written decisions on your appeal. Part C. FIRST STATE POST-CONVICTION PROCEEDINGS: Most states provide a specific method for challenging a conviction in the state courts after direct appeals have been completed. In Arizona the method is a petition for postconviction relief pursuant to Rule 32 of the Arizona Rules of Criminal Procedure. Answer each of the three questions regarding any first post-conviction relief proceedings you had in the state courts. If you sought review of your petition in the state appellate courts, you must provide the requested information for each level of appeal on the spaces provided. Attach a copy of all written decisions on your petition and appeal. Part D. SECOND STATE POST-CONVICTION PROCEEDINGS: Answer each of the three questions regarding any second post-conviction relief proceedings you had in the state courts. If you sought review of your second petition in the state appellate courts, you must provide the requested information for each level of appeal on the spaces provided. Attach a copy of all written decisions on your second petition and appeal. 3 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 7 of 20 Part E. OTHER STATE PROCEEDINGS: The Arizona courts normally permit a defendant to challenge his or her conviction or sentence only by filing a direct appeal or a Rule 32 petition for post-conviction relief. There may, however, be a few very narrow exceptions that permit a challenge by filing a "special action" or a habeas corpus petition in the state courts. Answer each of the three questions regarding any such proceedings you had in the state courts. Attach a copy of all written decisions on these proceedings. Part F. FEDERAL PROCEEDINGS: If this is not your first federal habeas corpus petition challenging this conviction, answer each of the seven questions regarding your prior federal petition. If your previous federal petition was denied, you must obtain permission from the Ninth Circuit Court of Appeals before you may file a second petition in the federal courts. If the court of appeals has granted you permission to file a successive petition, attach a copy of the court's written decision. Part G. PENDING PROCEEDINGS: If you have an appeal, petition, or other proceedings currently pending regarding the conviction you are challenging in this petition, answer each of the three questions in the spaces provided. Ordinarily, you may not file a federal petition for writ of habeas corpus if you have an appeal still pending in the state courts. Part H. REPRESENTATION: Print the name of the attorney who represented you at each stage of your state court criminal proceedings. If you represented yourself at any stage, check the box marked "Pro Se." Part I. OTHER SENTENCES: If you have any other sentences to serve aside from the sentence imposed by the judgment you are challenging in this petition, answer each of the four questions regarding your other convictions and sentences. CLAIMS FOR RELIEF: State concisely every ground for which you claim that your conviction or sentence violates the United States Constitution or other federal law. Your claims should not be based on state law. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and supporting facts. 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. The following list of the most frequently raised grounds for relief in habeas corpus proceedings is provided for your information only. You may raise any other federal grounds if you have exhausted all your state court remedies with respect to those grounds. 1. Conviction obtained by a plea of guilty which was unlawfully induced or not made voluntarily with the understanding of the nature of the charge or the consequences of the plea. 4 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 8 of 20 2. Conviction obtained by use of a coerced confession. 3. Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure (where the state did not provide a full and fair hearing on the Fourth Amendment claim). 4. Conviction obtained by use of evidence gained pursuant to an unlawful arrest (where the state did not provide a full and fair hearing on the Fourth Amendment claim). 5. Conviction obtained by a violation of the privilege against self-incrimination. 6. Conviction obtained by the unconstitutional failure of the prosecution to disclose evidence favorable to the defendant. 7. Conviction obtained by a violation of the protection against double jeopardy. 8. Conviction obtained by action of a grand or petit jury which was unconstitutionally selected or impaneled. 9. Denial of effective assistance of trial counsel or counsel on direct appeal in the state courts. 10. Denial of right of appeal. Parts G-M GROUNDS: The form includes space for only four grounds. If you are alleging more than four grounds, answer all of the questions for each additional ground on a separate page. 1. You must identify which constitutional right or other federal law was violated. You may allege the violation of only one federal right per ground. Your claim should not be based on state law. 2. Supporting facts. After you have identified which federal right was violated, you need to state the supporting facts. Be as specific as possible. Tell your story briefly without citing cases or law. 3. 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 state's highest court, your petition may be dismissed. If you did not present one or more of your grounds to the state's highest court, explain why you did not. SIGNATURE: You must sign your name and print the date you signed the petition. Your signature must be an original signature, not a photocopy. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. 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 needed, you may attach additional pages. The form, however, 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. 5 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 9 of 20 Name and Prisoner/Booking Number Place of Confinement Mailing Address City, State, Zip Code IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ,) ) Petitioner, ) ) vs. ) CASE NO. ) (To be supplied by the Clerk) ,) (Name of Warden, Superintendent, Jailor or ) authorized person having custody of Petitioner) ) ) PETITION FOR WRIT OF HABEAS CORPUS Respondent, ) BY A PERSON IN STATE CUSTODY and ) PURSUANT TO 28 U.S.C. 2254 THE ATTORNEY GENERAL OF THE STATE OF ) (NON-DEATH PENALTY) ) , ) Additional Respondent. ) ) (Full Name of Petitioner) A. JUDGMENT OF CONVICTION 1. 2. 3. 4. 5. 6. 7. 8. Name and location of court which entered the judgment of conviction you are challenging: Case Number: Date of judgment of conviction: Length and terms of sentence(s): Nature of offense(s) of which you were convicted (all counts): What was your plea? Kind of trial: Did you testify at the trial? (month/day/year) G Guilty G Jury G Yes G Not guilty G Judge only G No G Nolo contendere 98-2254 Revised 6/98 1 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 10 of 20 530 B. APPEALS 1. Did you appeal the conviction or sentence? If you did appeal, answer the following: a. Name of court: b. Date the appeal was filed: (month/day/year) c. Result: d. Date the appeal was decided: (month/day/year) e. Date the mandate was issued: (month/day/year) Did you seek review of your appeal in the state supreme court? If you did file a petition for review, answer the following: a. Date the petition was filed: (month/day/year) b. Result: c. Date the petition was decided: (month/day/year) d. Date the mandate was issued: (month/day/year) G Yes G No 2. G Yes G No 1. 2. 3. C. FIRST STATE POST-CONVICTION PROCEEDINGS Did you file a petition for post-conviction relief in the state court? G Yes G No If you did file a petition for post-conviction relief, answer the following: a. Name of court: b. Date the notice of post-conviction relief was filed: (month/day/year) c. Date the petition was filed: (month/day/year) d. Result: e. Date the petition was decided: (month/day/year) Did you seek review of your first petition in the court of appeals? G Yes G No If you did file a petition for review, answer the following: a. Date the petition was filed: (month/day/year) b. Result: c. Date the petition was decided: (month/day/year) d. Date the mandate was issued: (month/day/year) Did you seek review of your first petition in the state supreme court? G Yes G No If you did file a petition for review, answer the following: a. Date the petition was filed: (month/day/year) b. Result: c. Date the petition was decided: (month/day/year) d. Date the mandate was issued: (month/day/year) D. SECOND STATE POST-CONVICTION PROCEEDINGS Did you file a second petition for post-conviction relief in the state court? G Yes G No If you did file a second petition for post-conviction relief, answer the following: a. Name of court: b. Date the notice of post-conviction relief was filed: (month/day/year) c. Date the petition was filed: (month/day/year) d. Result: e. Date the petition was decided: (month/day/year) 1. Case 2:07-cv-00113-SMM--ECV 2 Document 5 Filed 02/02/2007 Page 11 of 20 2. 3. Did you seek review of your second petition in the court of appeals? If you did file a petition for review, answer the following: a. Date the petition was filed: (month/day/year) b. Result: c. Date the petition was decided: (month/day/year) (month/day/year) d. Date the mandate was issued: Did you seek review of your second petition in the state supreme court? If you did file a petition for review, answer the following: a. Date the petition was filed: (month/day/year) b. Result: c. Date the petition was decided: (month/day/year) d. Date the mandate was issued: (month/day/year) G Yes G No G Yes G No 1. 2. 3. E. OTHER STATE PROCEEDINGS Did you seek review of your conviction in any other state proceeding? G Yes G No If you did challenge your conviction in some other action, answer the following: a. Nature of the action: (e.g., special action, habeas corpus, etc.) b. Name of court: c. Date the action was filed: (month/day/year) d. Result: e. Date the action was decided: (month/day/year) Did you seek review of the other action in the court of appeals? G Yes G No If you did file a petition for review, answer the following: a. Result: b. Date the petition was decided: (month/day/year) Did you seek review of the other action in the state supreme court? G Yes G No If you did file a petition for review, answer the following: a. Result: b. Date the petition was decided: (month/day/year) Attach a copy of all state court written decisions regarding your conviction or sentence F. FEDERAL PROCEEDINGS G No Is this your first federal petition for writ of habeas corpus challenging this conviction? G Yes If this is not your first federal petition challenging this conviction, answer the following: 1. Name of court where the prior petition was filed: 2. Date the petition was filed: (month/day/year) 3. Case number of the prior action: 4. Date the action was decided: (month/day/year) 5. Did you raise any of the issues in this petition in your prior petition? G Yes G No 6. Was the prior petition G Granted, G Denied on the merits, or G Denied on procedural grounds? 7. If the prior petition was denied, has the Ninth Circuit Court of Appeals granted permission to file this successive petition? G Yes G No Attach a copy of all Ninth Circuit Court of Appeals written decisions Case 2:07-cv-00113-SMM--ECV 3 Document 5 Filed 02/02/2007 Page 12 of 20 G. PENDING PROCEEDINGS Do you have any appeal, petition, application, motion or other action currently pending regarding the conviction you are challenging in this petition? G Yes G No If you do have an action currently pending regarding your conviction, answer the following: 1. Nature of the action: (e.g., appeal, special action, habeas corpus, etc.) 2. Name of court where the action is pending: 3. Date the action was filed: (month/day/year) H. REPRESENTATION Who was the attorney who represented you in the following state court proceedings? Identify whether the attorney was appointed, retained, or whether you represented yourself pro se (without counsel). Name of Attorney 1. 2. 3. 4. 5. 6. 7. Preliminary hearing: Arraignment and plea: Trial/guilty plea: Sentencing: Direct appeal: First post-conviction petition: Second post-conviction petition: Appointed Retained Pro Se G G G G G G G G G G G G G G G G G G G G G I. OTHER SENTENCES Do you have any other sentences to serve after you complete the sentence imposed by the judgment you are challenging in this petition? G Yes G No If you do have other sentences to serve, answer the following: 1. Name of the court that imposed the other sentence: 2. Date of judgment of conviction: (month/day/year) 3. Length and terms of sentence: 4. Have you filed or do you plan to file any petition attacking the judgment which imposed the sentence to be served in the future? G Yes G No CLAIMS FOR RELIEF On the following pages, state concisely every ground for which you claim that your conviction or sentence violates the United States Constitution or other federal law. Your claims should not be based on state law. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional grounds and supporting facts. You must raise all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely be barred from being raised in any subsequent federal action. 4 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 13 of 20 J. GROUND I 1. My state conviction or sentence violates the following constitutional right or other federal law: 2. Supporting Facts: (State as briefly as possible the FACTS supporting Ground I. State the facts clearly in your own words without citing cases or legal arguments). 3. Exhaustion of state court remedies: G Yes G No a. Did you present the issue raised in Ground I to the state supreme court? b. If you did present the issue to the state supreme court, was the issue presented: G In a direct appeal G In your first post-conviction relief proceeding G In your second post-conviction relief proceeding G Other: (e.g., special action, habeas corpus, etc.) c. If you did not present the issue to the state supreme court, explain why you did not: 5 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 14 of 20 K. GROUND II 1. My state conviction or sentence violates the following constitutional right or other federal law: 2. Supporting Facts: (State as briefly as possible the FACTS supporting Ground II. State the facts clearly in your own words without citing cases or legal arguments). 3. Exhaustion of state court remedies: G Yes G No a. Did you present the issue raised in Ground II to the state supreme court? b. If you did present the issue to the state supreme court, was the issue presented: G In a direct appeal G In your first post-conviction relief proceeding G In your second post-conviction relief proceeding G Other: (e.g., special action, habeas corpus, etc.) c. If you did not present the issue to the state supreme court, explain why you did not: 6 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 15 of 20 L. GROUND III 1. My state conviction or sentence violates the following constitutional right or other federal law: 2. Supporting Facts: (State as briefly as possible the FACTS supporting Ground III. State the facts clearly in your own words without citing cases or legal arguments). 3. Exhaustion of state court remedies: G Yes G No a. Did you present the issue raised in Ground III to the state supreme court? b. If you did present the issue to the state supreme court, was the issue presented: G In a direct appeal G In your first post-conviction relief proceeding G In your second post-conviction relief proceeding G Other: (e.g., special action, habeas corpus, etc.) c. If you did not present the issue to the state supreme court, explain why you did not: 7 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 16 of 20 M. GROUND IV 1. My state conviction or sentence violates the following constitutional right or other federal law: 2. Supporting Facts: (State as briefly as possible the FACTS supporting Ground IV. State the facts clearly in your own words without citing cases or legal arguments). 3. Exhaustion of state court remedies: G Yes G No a. Did you present the issue raised in Ground IV to the state supreme court? b. If you did present the issue to the state supreme court, was the issue presented: G In a direct appeal G In your first post-conviction relief proceeding G In your second post-conviction relief proceeding G Other: (e.g., special action, habeas corpus, etc.) c. If you did not present the issue to the state supreme court, explain why you did not: 8 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 17 of 20 WHEREFORE, Petitioner prays that the court will grant Petitioner the relief to which he may be entitled in this proceeding. I declare under penalty of perjury that the foregoing is true and correct. Executed on DATE SIGNATURE OF PETITIONER (Name and title of paralegal, legal assistant or other person who helped prepare this petition) (Signature of attorney, if any) (Attorney's address & telephone number) ADDITIONAL PAGES All questions must be answered concisely in the proper space on the form. If needed, you may attach additional pages. The form, however, must be completely filled in to the extent applicable. 9 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 18 of 20 Name and Prisoner/Booking Number Place of Confinement Mailing Address City, State, Zip Code IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA ) ,) ) CASE NO. ) ) ) APPLICATION TO PROCEED ,) IN FORMA PAUPERIS ) BY A PRISONER ) (HABEAS) Petitioner, vs. Respondent(s). I, , declare, in support of my request to proceed in the above entitled case without prepayment of fees under 28 U.S.C. 1915, that I am unable to pay the fees for these proceedings or to give security therefor and that I believe I am entitled to relief. In support of this application, I answer the following questions under penalty of perjury: 1. Are you currently employed at the institution where you are confined? If "Yes," state the amount of your pay and where you work. GYes GNo 2. Do you receive any other payments from the institution where you are confined? If "Yes," state the source and amount of the payments. GYes GNo 98-ifphab Revised 6/98 1 Case 2:07-cv-00113-SMM--ECV Document 5 Filed 02/02/2007 Page 19 of 20 3. Do you have any other sources of income, savings, or assets either inside or outside of the institution where you are confined? GYes GNo If "Yes," state the sources and amounts of the income, savings, or assets. I declare under penalty of perjury that the above information is true and correct. DATE SIGNATURE OF APPLICANT CERTIFICATE OF CORRECTIONAL OFFICIAL AS TO STATUS OF APPLICANT'S TRUST ACCOUNT I, (Printed name of official) The applicant's trust account balance at this institution is: $ . , certify that as of the date applicant signed this application: DATE AUTHORIZED SIGNATURE TITLE/ID NUMBER INSTITUTION Case 2:07-cv-00113-SMM--ECV 2 Document 5 Filed 02/02/2007 Page 20 of 20

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