Heredia-Oliva v. USA

Filing 4

ORDER - IT IS HEREBY ORDERED: Movant's 1 MOTION to Vacate, Set Aside or Correct Sentence (2255) (Doc. 51 in CR 07-CR-544-TUC-SMM) is denied without prejudice and the civil action opened in connection with this Motion (CV 08-684-TUC-SMM) is dis missed without prejudice to allow Movant to seek certification from the Ninth Circuit Court of Appeals to file a second or successive § 2255 motion. The Clerk of Court must send a copy of this Order and Movant's 12/22/08 "Petition  7; 2255" (Doc. 51 in CR-07-544-TUC-SMM) to the Ninth Circuit Court of Appeals and to Pla. The Clerk of Court must provide Movant with a copy of the form recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255. Signed by Judge Stephen M McNamee on 1/29/09. (Attachments: # 1 Ninth Circuit Form) (SAT)

Download PDF
Form 12. (New, 7/1/02) Application for Leave to File Second or Successive Petition Under 28 U.S.C. 2254 or Motion Under 28 U.S.C. 2255 UNITED STATES COURT of APPEALS for the NINTH CIRCUIT 95 Seventh Street San Francisco, California 94103 Application for Leave to File Second or Successive Petition Under 28 U.S.C. 2254 or Motion Under 28 U.S.C. 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 of the Ninth Circuit. The application must comply with 9th Circuit Rule 22-3, which is attached to this form. (2) All questions must be answered concisely. Add separate sheets if necessary. (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. 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 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 2255? Yes G No 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) What grounds were raised in your previous habeas proceeding? (list all grounds and issues previously raised in that petition/ motion) ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ (6) Did the district court hold an evidentiary hearing? Yes G No G (7) How did the district court rule on your petition/motion? G G G District court dismissed petition/motion? If yes, on what grounds? __________________________________________________________________ District court denied petition/motion; 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? ________________________________________________________________________ Did you file an appeal from that disposition? Yes G No G (9) (a) What was the docket number of your appeal? __________________________________ (b) How did the court of appeals decide your appeal?_______________________________ ______________________________________________________________________________ ______________________________________________________________________________ (10) 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? ________________________________________________________________________ For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list each ground separately) ________________________________________________________________________ ________________________________________________________________________ (11) (12) (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) ________________________________________________________________________ ________________________________________________________________________ For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence and when did you discover it? Why has this newly discovered evidence not been previously available to you? (list each ground separately) ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ For each ground/issue raised, does the newly discovered evidence establish your innocence? How? ________________________________________________________________________ ________________________________________________________________________ For each ground/issue raised, does the newly discovered evidence establish a federal constitutional error? Which provision of the Constitution was violated and how? ________________________________________________________________________ ________________________________________________________________________ Provide any other basis for your application not previously stated. ________________________________________________________________________ ________________________________________________________________________ ________________________________________________________________________ (14) (15) (16) (17) Date: __________________ Signature:_________________________________ Proof of Service on Respondent MUST be Attached.

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?