Marshall v. McGregor

Filing 4

ORDER Within 30 days of the date this Order is filed, Petitioner must either pay the $5.00 filing fee or file a complete Application to Proceed In Forma Pauperis. If Petitioner fails to either pay the $5.00 filing fee or file a complete App lication to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter a judgment of dismissal of this action without prejudice and without further notice to Petitioner. 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. 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. The Clerk of Court must send Petitioner the current court-approved forms for filing a "Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (Non-Death Penalty)" and an Application to Proceed In Forma Pauperis (Habeas). Signed by Judge G Murray Snow on 11/22/2013. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Carl Thomas Marshall,

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No. 13-1725-PHX-GMS (MHB)

Petitioner,

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vs.

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Matthew McGregor,

ORDER

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Respondent.

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Petitioner Carl Thomas Marshall, who is confined in the Arizona State Prison-

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Kingman, has filed a pro se “Motion (Pursuant to Sec. 2255 of Title 28 U.S.C.).”

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Because Petitioner is in state custody, the Court will construe the Petition as filed

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pursuant to 28 U.S.C. § 2254. Petitioner has not paid the $5.00 filing fee or filed an

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Application to Proceed In Forma Pauperis and has not filed his Petition on the court-

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approved form.

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The Court will give Petitioner 30 days to: (1) pay the filing fee or file an

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Application to Proceed In Forma Pauperis; and (2) file an amended petition on the court-

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approved form.

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I.

Failure to Pay Filing Fee

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corpus petitioner desires to prosecute the petition in forma pauperis, the petitioner shall

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file an application to proceed in forma pauperis on a form approved by the Court,

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Rule 3.5(b) of the Local Rules of Civil Procedure requires that “[i]f a habeas

accompanied by a certification of the warden or other appropriate officer of the

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institution in which the petitioner is confined as to the amount of money or securities on

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deposit to the petitioner’s credit.” Rule 3.5(b) also requires payment of the $5.00 filing

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fee if a petitioner has in excess of $25.00 in his inmate account.

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Because Petitioner has not paid the $5.00 filing fee or filed an Application to

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Proceed In Forma Pauperis, Petitioner will be given 30 days from the date this Order is

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filed to either pay the $5.00 filing fee or file a complete Application to Proceed In Forma

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Pauperis using the form included with this Order.

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II.

Failure to File on Court-Approved Form

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Local Rule of Civil Procedure 3.5(a) requires that petitions for writ of habeas

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corpus “shall be signed and legibly written or typewritten on forms approved by the

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Court.” Petitioner has not used the court-approved form for filing a petition for writ of

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habeas corpus. Because the Petition does not substantially comply with Local Rule of

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Civil Procedure 3.5(a), the Court will dismiss the Petition with leave to amend.

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Petitioner will have 30 days from the date this Order is signed to file an amended

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petition on a completed, court-approved form, using the form included with this Order,

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and may not incorporate any part of the original Petition by reference.

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Petitioner should note that pursuant to 28 U.S.C. § 2254, “a district court shall

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entertain an application for writ of habeas corpus in behalf of a person in custody

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pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” Accordingly,

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Petitioner’s grounds for relief must state how his conviction and/or sentence violate(s) the

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Constitution, laws or treaties of the United States.

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Further, a petitioner for habeas corpus relief under 28 U.S.C. § 2254 must name

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the state officer having custody of him as the respondent to the petition. See Rule 2(a),

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Rules Governing Section 2254 Cases; Belgarde v. Montana, 123 F.3d 1210, 1212 (9th

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Cir. 1997). Typically, this person is the warden of the institution where the petitioner is

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incarcerated. “Failure to name the petitioner’s custodian as a respondent deprives federal

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courts of personal jurisdiction.” Stanley v. California Supreme Court, 21 F.3d 359, 360

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(9th Cir. 1994).

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Finally, Petitioner is cautioned that a prisoner attacking his state conviction or

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disciplinary proceeding must exhaust state remedies before a federal court will entertain a

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petition for writ of habeas corpus. Rose v. Lundy, 455 U.S. 509 (1982); Szeto v. Rushen,

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709 F.2d 1340 (9th Cir. 1983). The federal court will not entertain a petition for writ of

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habeas corpus unless each and every issue has been exhausted. Rose, 455 U.S. at 521-22.

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All grounds alleged in the original Petition that are not alleged in an amended

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petition will be waived. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542,

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1546 (9th Cir. 1990) (“an amended pleading supersedes the original”); King v. Atiyeh,

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814 F.2d 565, 567 (9th Cir. 1987).

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III.

Warnings

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A.

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Petitioner must file and serve a notice of a change of address in accordance with

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Rule 83.3(d) of the Local Rules of Civil Procedure. Petitioner must not include a motion

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for other relief with a notice of change of address. Failure to comply may result in

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dismissal of this action.

Address Changes

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B.

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Petitioner must submit an additional copy of every filing for use by the Court.

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further

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notice to Petitioner.

Copies

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C.

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If Petitioner fails to timely comply with every provision of this Order, including

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these warnings, the Court may dismiss this action without further notice. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action

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for failure to comply with any order of the Court).

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...

Possible Dismissal

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IT IS ORDERED:

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(1)

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Within 30 days of the date this Order is filed, Petitioner must either pay the

$5.00 filing fee or file a complete Application to Proceed In Forma Pauperis.
(2)

If Petitioner fails to either pay the $5.00 filing fee or file a complete

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Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must enter

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a judgment of dismissal of this action without prejudice and without further notice to

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Petitioner.

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(3)

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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.
(4)

The Clerk of Court must enter a judgment of dismissal without prejudice of

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this action, without further notice to Petitioner, if Petitioner fails to submit an amended

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petition on the court-approved form within 30 days from the filing date of this Order.

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(5)

The Clerk of Court must send Petitioner the current court-approved forms

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for filing a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in

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State Custody (Non-Death Penalty)” and an Application to Proceed In Forma Pauperis

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(Habeas).

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Dated this 22nd day of November, 2013.

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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 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 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).
Revised 3/9/07

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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
U.S. District Court Clerk
U.S. Courthouse, Suite 130
401 West Washington Street, SPC 10
Phoenix, Arizona 85003-2119

Tucson Division:
U.S. District Court Clerk
U.S. Courthouse, Suite 1500
405 West Congress Street
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
(month, day, year) to:
this
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
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 not included 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.
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12. Warnings.
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.

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.

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Name and Prisoner/Booking 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,
vs.

(Name of the Director of the Department of
Corrections, Jailor or authorized person having
custody of Petitioner)
Respondent,
and
The Attorney General of the State of
Additional Respondent.

, )
)
)
)
) CASE NO.
)
(To be supplied by the Clerk)
, )
)
)
)
PETITION UNDER 28 U.S.C. § 2254
)
FOR A WRIT OF HABEAS CORPUS
)
BY A PERSON IN STATE CUSTODY
)
(NON-DEATH PENALTY)
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)
)
)
PETITION

1. (a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number:
2. Date of judgment of conviction:
3. In this case, were you convicted on more than one count or crime?

Revised 3/9/07

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Yes G

No G

530

4. Identify all counts and crimes for which you were convicted and sentenced in this case:

5. Length of sentence for each count or crime for which you were convicted in this case:

6. (a) What was your plea?
Not guilty
Guilty
Nolo contendere (no contest)

G
G
G

(b) If you entered a guilty plea to one count or charge, and a not guilty plea to another count or charge,
give details:

(c) If you went to trial, what kind of trial did you have? (Check one)
7. Did you testify at the trial?

Yes G

Jury G

Judge only G

No G

8. Did you file a direct appeal to the Arizona Court of Appeals from the judgment of conviction?
No G
Yes G
If yes, answer the following:
(a) Date you filed:
(b) Docket or case number:
(c) Result:
(d) Date of result:
(e) Grounds raised:

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

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Yes G

9. Did you appeal to the Arizona Supreme Court?

No G

If yes, answer the following:
(a) Date you filed:
(b) Docket or case number:
(c) Result:
(d) Date of result:
(e) Grounds raised:

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

10. Did you file a petition for certiorari in the United States Supreme Court? Yes G

No G

If yes, answer the following:
(a) Date you filed:
(b) Docket or case number:
(c) Result:
(d) Date of result:
(e) Grounds raised:

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

11. Other than the direct appeals listed above, have you filed any other petitions, applications or motions
No G
concerning this judgment of conviction in any state court?
Yes G
If yes, answer the following:

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(a) First Petition.
(1) Date you filed:
(2) Name of court:
(3) Nature of the proceeding (Rule 32, special action or habeas corpus):
(4) Docket or case number:
(5) Result:
(6) Date of result:
(7) Grounds raised:

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

(b) Second Petition.
(1) Date you filed:
(2) Name of court:
(3) Nature of the proceeding (Rule 32, special action or habeas corpus):
(4) Docket or case number:
(5) Result:
(6) Date of result:
(7) Grounds raised:

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

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(c) Third Petition.
(1) Date you filed:
(2) Name of court:
(3) Nature of the proceeding (Rule 32, special action or habeas corpus):
(4) Docket or case number:
(5) Result:
(6) Date of result:
(7) Grounds raised:

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

(d) Did you appeal the action taken on your petition, application, or motion to the:
Arizona Court of Appeals:
Arizona Supreme Court:
Yes G

No G

Yes G

No G

(2) Second petition: Yes G

No G

Yes G

No G

Yes G

No G

Yes G

No G

(1) First petition:

(3) Third petition

(e) If you did not appeal to the Arizona Court of Appeals, explain why you did not:

12. 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 statecourt remedies on each ground on which you request action by the federal court. Also, if you fail to set
forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
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GROUND ONE:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you present the issue raised in Ground One to the Arizona Court of Appeals? Yes G

No G

(c) If yes, did you present the issue in a:
Direct appeal
G
First petition
G
Second petition
G
Third petition
G
(d) If you did not present the issue in Ground One to the Arizona Court of Appeals, explain why:

(e) Did you present the issue raised in Ground One to the Arizona Supreme Court? Yes G
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No G

GROUND TWO:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you present the issue raised in Ground Two to the Arizona Court of Appeals? Yes G

No G

(c) If yes, did you present the issue in a:
Direct appeal
G
First petition
G
Second petition
G
Third petition
G
(d) If you did not present the issue in Ground Two to the Arizona Court of Appeals, explain why:

(e) Did you present the issue raised in Ground Two to the Arizona Supreme Court? Yes G
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No G

GROUND THREE:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you present the issue raised in Ground Three to the Arizona Court of Appeals? Yes G

No G

(c) If yes, did you present the issue in a:
Direct appeal
G
First petition
G
Second petition
G
Third petition
G
(d) If you did not present the issue in Ground Three to the Arizona Court of Appeals, explain why:

(e) Did you present the issue raised in Ground Three to the Arizona Supreme Court? Yes G
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No G

GROUND FOUR:

(a) Supporting FACTS (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) Did you present the issue raised in Ground Four to the Arizona Court of Appeals? Yes G

No G

(c) If yes, did you present the issue in a:
Direct appeal
G
First petition
G
Second petition
G
Third petition
G
(d) If you did not present the issue in Ground Four to the Arizona Court of Appeals, explain why:

(e) Did you present the issue raised in Ground Four to the Arizona Supreme Court? Yes G
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No G

Please answer these additional questions about this petition:
13. Have you previously filed any type of petition, application or motion in a federal court regarding the
conviction that you challenge in this petition?
Yes G
No G
If yes, give the date of filing, the name and location of the court, the docket or case number, the type of
proceeding, the issues raised, the date of the court’s decision, and the result for each petition, application, or
motion filed. Attach a copy of any court opinion or order, if available:

14. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or
No G
federal, as to the judgment you are challenging? Yes G
If yes, give the date of filing, the name and location of the court, the docket or case number, the type of
proceeding, and the issues raised:

15. Do you have any future sentence to serve after you complete the sentence imposed by the judgment you
are challenging?
Yes G
No G
If yes, answer the following:
(a) Name and location of the court that imposed the sentence to be served in the future:

(b) Date that the other sentence was imposed:
(c) Length of the other sentence:
(d) Have you filed, or do you plan to file, any petition challenging the judgment or sentence to be served
in the future?
Yes G
No G

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16. TIMELINESS OF PETITION: If your judgment of conviction became final more than one year ago, you
must explain why the one-year statute of limitations in 28 U.S.C. § 2244(d) does not bar your petition.*

*Section 2244(d) provides in part that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of(A) the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme
Court, if the right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.
17. 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
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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.
Respondent(s).

)
, )
) CASE NO.
)
)
)
APPLICATION TO PROCEED
, )
IN FORMA PAUPERIS
)
BY A PRISONER
)
(HABEAS)

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

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
, certify that as of the date applicant signed this application:

I,
(Printed name of official)

The applicant’s trust account balance at this institution is: $

DATE

AUTHORIZED SIGNATURE

TITLE/ID NUMBER

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.

INSTITUTION