Walker #159279 v. Ryan et al

Filing 25

ORDER that 11 Petitioner's Second Amended Petition for Writ of Habeas Corpus and this action are dismissed without prejudice. Clerk must enter judgment. Signed by Judge David G Campbell on 2/4/14. (Attachments: # 1 Form 2nd/Successive Petition). (LSP)

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT APPLICATION FOR LEAVE TO FILE SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2254 OR § 2255 Docket Number ____________________ (to be provided by court) Petitioner's name ___________________________________ Prisoner registration number _______________________ Address _________________________ _________________________ _________________________ _________________________ Instructions - Read Carefully 1. This application, whether handwritten or typewritten, must be legible and signed by the petitioner under penalty of perjury. An original and five (5) copies must be provided to the Clerk. The application must comply with 9th Circuit Rule 22-3, which is attached to this form. 2. All questions must be answered concisely and in relationship to the questioned asked on this form. 3. The petitioner shall serve a copy of this application and any attachments on respondent and must complete and file a proof of service with this application. 4. The petitioner shall attach to this application copies of the magistrate judge's report and recommendation and the district court's opinion in any prior federal habeas proceeding under 28 U.S.C. § 2254 or § 2255 or state why such documents are unavailable to petitioner. _______________ This form has not been officially adopted by the Ninth Circuit Court of Appeals, but prisoners are encouraged to use this form to comply with Ninth Circuit Rule 22-3 pending the completion of official rule-making procedures. Questions should be directed to the Office of Staff Attorneys, Motions/Pro Se Unit, (415) 556-9890 You Must Answer the Following Questions: 1. What conviction(s) are you challenging? _____________________________________________________________ _____________________________________________________________ 2. In what court(s) were you convicted of these crime(s)? _____________________________________________________________ _____________________________________________________________ 3. What was the date of each of your conviction(s) and what is the length of each sentence? _____________________________________________________________ _____________________________________________________________ For questions (4) through (9), provide information separately for each of your previous section 2254 or 2255 proceedings. Use additional pages if necessary. 4. With respect to each conviction and sentence, have you ever filed a petition or motion for habeas corpus relief in federal court under 28 U.S.C. § 2254 or No G § 2255? Yes G (a) In which federal district court did you file a petition or motion? _______________________________________________________ (b) What was the docket number? ________________________________ (c) On what date did you file the petition/motion? ___________________ 5. 6. What grounds were raised in your previous habeas proceeding? (list all grounds and issues previously raised in that petition/motion) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ Did the district court hold an evidentiary hearing? Yes G No G 2 7. How did the district court rule on your petition/motion? a. District court dismissed petition/motion, if yes, on what grounds? __________________________________ G District court denied petition/motion; G District court granted relief; if yes, on what claims and what was the relief? _______________________________________________________ (attach copies of all reports and orders issued by the district court) 8. On what date did the district court decide your petition/motion? _____________________________________________________________ 9. Did you file an appeal from that disposition? Yes G No G (a) What was the docket number of your appeal? ____________________ (b) How did the court of appeals decide your appeal? ________________ 10. 11. State concisely each and every ground or issue you wish to raise in your current petition or motion for habeas relief. Summarize briefly the facts supporting each ground or issue. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ For each ground raised, was it raised in the state courts? If so, what did the state courts rule and when? 3 _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 12. For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list each ground separately) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 13. For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each ground separately and give case name and citation for each new rule of law) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 14. For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence? Why has this newly discovered evidence not been previously available to you? (list each ground separately) _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 15. For each ground/issue raised, does the newly discovered evidence establish your innocence? How? revised 2/02 4 _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 16. For each ground/issue raised, does the newly discovered evidence establish a federal constitutional error? Which provision of the Constitution was violated and how? _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ 17. Provide any other basis for your motion not previously stated. _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ _____________________________________________________________ Signature: _________________________ Date: _______________ Proof of Service on Respondent MUST be Attached. revised 2/02 5 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 95 Seventh Street San Francisco, CA 94103 NINTH CIRCUIT RULE 22-3 (a) Applications. Any petitioner seeking leave to file a second or successive 2254 petition or 2255 motion in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. §§ 2244 or 2255. An original and five copies of the application must be filed with the Clerk of the Court of Appeals. No filing fee is required. If a second or successive petition or motion, or an application for leave to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. The application must: (1) include a copy of the second or successive 2254 petition or 2255 motion which the applicant seeks to file in the district court; and (2) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and (3) state how the requirements of sections 2244(b) or 2255 have been satisfied. (b) Excerpts of Record. If reasonably available to the petitioner, the application must include copies of all relevant state court orders and decisions and all dispositive district court orders in prior federal proceedings. If excerpts of record filed by petitioner are incomplete, respondent may file a supplemental excerpt of record. (c) Service. The petitioner must serve a copy of the application and all attachments on the respondent, and must attach a certificate of service to the application filed with the court. (d) Response. In noncapital cases, no response is required unless ordered by the court. In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental excerpts as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental excerpts within ten days of the date the application is served. (e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the court will grant or deny the application, and state its reasons therefore, as soon as practicable. (f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question will be presented to the panel as soon as practicable. If the court grants leave to file a second or successive application, the court shall stay petitioner's execution pending disposition of the second or successive petition by the district court.

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