Pianka v. De Rosa et al
Filing
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ORDER, Petitioner's Motion to Appoint Counsel 2 is denied without prejudice; Petitioner's Petition for Writ of Habeas Corpus 1 is dismissed with leave to amend; Petitioner has 30 days to file an amended petition; if Petitioner fails to comply with this order, the Clerk must enter a judgment of dismissal without prejudice of this action, without further notice to Petitioner. Signed by Judge David G Campbell on 3/16/15. (REW)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Victor Pianka,
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No. CV 14-2720-PHX-DGC (MHB)
Petitioner,
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v.
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Charles De Rosa, et al.,
ORDER
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Respondents.
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Petitioner Victor Pianka, who is confined in the Eloy Detention Center, has filed a
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pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1) and a
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Motion to Appoint Counsel (Doc. 2), and has paid the $5.00 filing fee. The Court will
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dismiss the motion and will dismiss the Petition with leave to amend.
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I.
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Petition1
Pursuant to a plea agreement, Petitioner was convicted in Maricopa County
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Superior Court, case #CR 2011-160573, of possession of drug paraphernalia and was
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sentenced to a term of probation of 18 months. Petitioner filed a petition for Post-
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Conviction Relief, which was denied as untimely. In his Petition, Petitioner names
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Charles De Rosa as Respondent and the Arizona Attorney General as an Additional
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Respondent. Petitioner raises seven grounds for relief:
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Petitioner has included approximately 130 pages of legal arguments, state court
documents, and exhibits, which he has randomly interspersed throughout the Petition.
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1)
Defense counsel was ineffective when she failed to advise Petitioner
of the immigration consequences of his guilty plea, in violation of
Petitioner’s Sixth Amendment rights.
2)
Petitioner was actually innocent and “no reasonable juror would
[have] convicted [him].”
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3)
Petitioner was coerced into pleading guilty.
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4)
Defense counsel had a conflict of interest and “was not representing
[Petitioner’s] interests” during the criminal proceedings.
5)
Plaintiff’s Fourth Amendment rights were violated because there
was no probable cause or reasonable suspicion to arrest him.
6)
The prosecutor engaged in misconduct, which violated Petitioner’s
due process rights.
7)
The trial court abused its discretion when it failed to dismiss the
charges against Petitioner based on the lack of evidence.
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In his request for relief, Petitioner asks that the Court vacate his conviction, place
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him in witness protection, and “convict the people that have been persecuting [him] for
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15 years unrelentlessly.”
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II.
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The “In Custody” Requirement of § 2254
Federal habeas relief under § 2254 is available “only on the ground that [an
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inmate] is in custody in violation of the Constitution or laws or treaties of the United
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States.” 28 U.S.C. § 2254(a). The United States Supreme Court has interpreted “the
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statutory language as requiring that the habeas petitioner be ‘in custody’ under the
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conviction or sentence under attack at the time his petition is filed,” although he need not
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be physically confined to challenge a sentence on habeas corpus. Maleng v. Cook, 490
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U.S. 488, 491 (1989) (an expired conviction can never satisfy the “in custody”
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requirement, even if it is used to enhance a subsequent sentence); Chaker v. Crogan, 428
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F.3d 1215, 1219 (9th Cir. 2005) (petitioner was “in custody” while he remained subject
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to probation under the conviction or sentence at the time he filed his habeas petition);
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Fowler v. Sacramento County Sheriff’s Dep’t, 421 F.3d 1027, 1033 (9th Cir. 2005). “A
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criminal sentence – unlike the underlying convictions . . . – carries no presumption of
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collateral consequences. Thus, a habeas [corpus] petitioner must show ‘some concrete
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and continuing injury other than the now-ended incarceration or parole . . . if the suit is to
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be maintained.’” Maciel v. Cate, 731 F.3d 928, 931 (9th Cir. 2013) (quoting Spencer v.
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Kemna, 523 U.S. 1, 7 (1998)).
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Petitioner is attempting to challenge his 2012 state court conviction for possession
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of drug paraphernalia in which he was sentenced to 18 months of probation. According
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to available online records, Petitioner’s probation terminated on January 18, 2014.2
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Petitioner does not allege that he was serving a sentence for that conviction when he
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commenced this case on December 18, 2014. Nor does Petitioner allege collateral
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consequences stemming from that conviction to show that he remained “in custody” as to
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that conviction when he commenced this case. Accordingly, the Court will dismiss the
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Petition with leave to file a first amended petition in which Petitioner alleges facts to
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support that he was in custody as to his 2012 possession of drug paraphernalia
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conviction in Maricopa County Superior Court case #CR2011-160573 at the time he
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commenced this habeas corpus case.
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III.
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Motion to Appoint Counsel
“Indigent state prisoners applying for habeas corpus relief are not entitled to
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appointed counsel unless the circumstances of a particular case indicate that appointed
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counsel is necessary to prevent due process violations.” Chaney v. Lewis, 801 F.2d 1191,
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1196 (9th Cir. 1986). However, the Court has discretion to appoint counsel when “the
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interests of justice so require.” 18 U.S.C. § 3006A(a)(2)(B).
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Petitioner has not made the necessary showing for appointment of counsel at this
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time, and, therefore, his Motion for Counsel Appointment will be denied without
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prejudice. If, at a later date, the Court determines that an evidentiary hearing is required,
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counsel will be appointed in accordance with Rule 8(c) of the Rules Governing Section
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2254 Proceedings.
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....
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2
See http://www.courtminutes.maricopa.gov/docs/Criminal/012014/m6120224.pdf
(last visited on February 26, 2015).
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IV.
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Leave to Amend
For the foregoing reasons, Petitioner’s Petition will be dismissed with leave to
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amend. Within 30 days, Petitioner may submit a first amended petition to cure the
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deficiencies outlined above. The Clerk of Court will mail Petitioner a court-approved
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form to use for filing an amended petition.
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Petitioner is cautioned that if he fails to file his amended petition on the court-
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approved form included with this Order, it will be stricken and the action dismissed
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without further notice to Petitioner.
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Petitioner is advised that the amended petition must be retyped or rewritten in its
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entirety on the court-approved form and may not incorporate any part of the original
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Petition by reference. Any amended petition submitted by Petitioner should be clearly
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designated as such on the face of the document.
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An amended petition supersedes the original petition. Ferdik v. Bonzelet, 963 F.2d
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1258, 1262 (9th Cir. 1992); Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d
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1542, 1546 (9th Cir. 1990). After amendment, the original pleading is treated as
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nonexistent. Ferdik, 963 F.2d at 1262. Any ground for relief that was raised in the
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original petition and that was voluntarily dismissed or was dismissed without prejudice is
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waived if it is not alleged in an amended petition. Lacey v. Maricopa County, 693 F.3d
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896, 928 (9th Cir. 2012) (en banc).
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V.
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
Address Changes
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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.
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B.
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Petitioner must serve Respondents, or counsel if an appearance has been entered, a
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Copies
copy of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a
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certificate stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also,
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Petitioner must submit an additional copy of every filing for use by the Court. LRCiv
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5.4. Failure to comply may result in the filing being stricken without further notice to
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Petitioner.
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C.
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If Petitioner fails to timely comply with every provision of this Order, including
Possible Dismissal
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these warnings, the Court may dismiss this action without further notice. See Ferdik, 963
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F.2d at 1260-61 (a district court may dismiss an action for failure to comply with any
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order of the Court).
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IT IS ORDERED:
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(1)
Petitioner’s Motion to Appoint Counsel (Doc. 2) is denied without
prejudice.
(2)
Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) is dismissed with
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leave to amend. Petitioner has 30 days from the date this Order is filed to file an
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amended petition.
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(3)
If Petitioner fails to submit an amended petition on the court-approved form
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within 30 days from the filing date of this Order, the Clerk of Court must enter a
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judgment of dismissal without prejudice of this action, without further notice to
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Petitioner.
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(4)
The Clerk of Court must send Petitioner the current court-approved form
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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).”
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Dated this 16th day of March, 2015.
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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 2/4/14
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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
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 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. The respondents are
required to provide relevant portions of the record.
Any exhibits you attach should be individually labeled (e.g. “Exhibit 1,” “Exhibit 2,” etc.)
and attached at the end of your petition. Exhibits should not be placed in the middle of your
petition.
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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. 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
, )
)
)
)
) CASE NO.
)
(To be supplied by the Clerk)
, )
(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
PETITION UNDER 28 U.S.C. § 2254
FOR A WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
(NON-DEATH PENALTY)
Additional Respondent. )
)
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
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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) Jury G
7. Did you testify at the trial?
Judge only G
Yes G No G
8. Did you file a direct appeal to the Arizona Court of Appeals from the judgment of conviction?
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.
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9. Did you appeal to the Arizona 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.
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
concerning this judgment of conviction in any state court? Yes G No 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 federal,
as to the judgment you are challenging?
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, 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
(month, day, year).
Corpus was placed in the prison mailing system on
Signature of Petitioner
Signature of attorney, if any
Date
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