John Smith v. Unknown

Filing 9

ORDER TO SHOW CAUSE RE: DISMISSAL OF HABEAS PETITION AS UNEXHAUSTED AND/OR FOR FAILURE TO STATE A CLAIM by Magistrate Judge Paul L. Abrams. ON OR BEFORE JUNE 30, 2017, petitioner is ordered to show cause why this action should not be dismissed as unexhausted and/or for failure to state a claim. SEE ORDER FOR DETAILS. (Attachments: # 1 blank state habeas petition with request to proceed in forma pauperis, # 2 blank notice of dismissal form, # 3 REJECTED and RETURNED DOCUMENTS) (ch)

MC-275
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(Court)
PETITION FOR WRIT OF HABEAS CORPUS
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Petitioner
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Respondent

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(To be supplied by the Cierfr of the Courfl

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INSTRUCTIONS—READ CAREFULLY
• If you are challenging an order of commitment or a criminal conviction and are filing this petition in the
Superior Court, you should file it in the county that made the order.
If you are challenging the conditions of your confinement and are filing th:s petition in the Superior Court,
you should file it in the county in which you are confined.
• Read the entire form before answering any questions.
• This petition must be clearly handwritten in ink or typed. You should exercise care to make sure all answers are true and
correct. Because the petition includes a verification, the making of a statement that you know is false may result in a conviction
for perjury.
Answer all applicable questions in the proper spaces. If you need additional space, add an extra page and indicate that your
answer is "continued on additional page."
•

If you are filing this petition in the superior court, you only need to file the original unless local rules require additional copies.
Many courts require more copies.

• If you are filing this petiticn in the Court of Appeal and you are an attorney, file the original and 4 copies of the petition and, if
separately bound, 1 set of any supporting documents (unless the court orders otherwise by local rule or in a specific case). If you
are filing this petition in the_Court of Appeal and you are not represented by an attorney, file the original and one set of any
supporting documents.
• If you are filing this petition in the California Supreme Court, file the original and 10 copies of the petition and, if separately bound,
an original and 2 copies of any supporting documents.
• Notify the Clerk of the Court in writing if you change your address after filing your petition.
Approved by the Judicial Council of California for use under rule 8.380 of the Cal'rfomia Rules of Court (as amended"
effective January 1, 200 . Subsequent amendments to rule 8.380 may change the number of copies to be furnished to the
Supreme Court and Court of Appeal.
Page 1 of 6
Form Approved for Optional Use
Judicial Council of Cal'rfomia
MC-275 [Rev. January 1, 2010]

PETITION FOR WRIT OF HABEAS CORPUS

Penal Code, § 1473 al seq.;
Cal. Rules of Court, rule 8380
www.couAinfo.ca.gov

MC-275
This petition concerns:
Q A conviction

Q Parole

Q A sentence

~ Credits

Q

~
~ Pricnn riicrinlina

,Jal~ nr nricnn rtnnrlitinns

0 ~~'

1. Your name:
2 Where are y~
.
Q Criminal conviction

3 Why are you in custody?
.

~ Civil commitment

Answer items a through r to the best of your ability.
a. State reason for civil commitment or, if criminal conviction, state nature of offense and enhancements (for example, "robbery with
use of a deadly weapon").

b. Penal or other code sections:
c. Name and location of sentencing or committing court:

d. Case number: z.~~ ~o

I q ~5

e. Date convicted or committed:. ,~~~
f Date sentenced:
.
g. Length of sentence: ~ ~~~, C.p; ~ ~~-~d
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m
`
h. When do you expect to be released?

~~

i. Were you represented by counsel in the trial court?

A

~ , ~~

Q Yes

Q No

~

If es state fhe attome 's namE

.Y .__ _ _ If.

_

f

4 What was the LAST plea you entered?'(Check one):
.
Q Not guilty 0 Guilty 0 Nolo contendere I~ Other:
5 If you pleaded not guilty, what kind of trial did you have?
.
Jury 0 Judge without ajury

MC-275[Rev. January 1, zo~o~

C] Submitted on transcript

~ Awaiting fial

PETITION FOR WRIT OF HABEAS CORPUS

Page 2 of 6

MC
-275
GROUNDS FOR RELIEF
Ground 1: State briefly the ground on which you base your claim for relief. For example, "The trial court imposed an illegal
enhancement."(If you have additional grounds for relief, use a separate page for each ground. Sfate ground 2 on page 4.
For addiSona/grounds, make copies of page 4 and number the additional graunds in order.)

a. Supporting facts:
Tell your story briefly without citing cases or law. If you are challenging the legality of your conviction, describe the facts on which
your conviction is based. !f necessary, attach additional pages. CAUTION: You must state facts, not conclusions. For example, if
you are claiming incompetence of counsel, you must state facts specifically setting forth what your aftorney did or failed to do and
how that affected your trial. Failure to allege sufficient facts will result in the denial of your petition.(See In re Swain (1949) 34
Cal.2d 300, 304.) A rule of thumb to follow is, who did exactly what to violate your rights at what time (when) or place (where). (If
available, attach declarations, relevant records, transcripts, or other documents supporting your claim.)

~~

b. Supporting cases, rules, or other authority o tional
Briefly discuss, or list by name and citation, the cases or other authorities that you think are relevanf fo yoUr claim. If necessary,
(
aftach an extra page.)

MC-275[Rev. January 1, 2010]

PETITION FOR WRIT OF HABEAS CORPUS

Page3oF6

MC-275
~~ Ground 2 or Ground

(if applicable):

/✓/~

a. Supporting facts:

/
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fl

b. Supporting cases, rules, or other authority:
~l~

MC-275[Rev. January 1, 2010]

PETITION FOR WRIT OF HABEAS CORPUS

Pace a of e

MC-275
g. Did you appeal from the conviction, sentence, or commitment? 0 Yes
~No
a. Name of court ("Court of Appeal" or "Appellate Division of Superior CourC~:

b. Result:

If ves, give the following information:

c. Date of decision:

d. Case number or citation of opinion, if known:
e. Issues raised: (1)
C2)
(
3)
f ~ Were you represented by counsel on appeal? ~ Yes
.

I.J No

If ves. state the attome~s name and address. if known:

9 Did you seek review in the California Supreme Court? Q Yes ~No
.

Imes, give the following information:
b. Date of deasion:

a. Result:
c. Case number or citation of opinion, 'rf known:
d. Issues raised: (1)
(
2)
(
3)

10.If your petition makes a claim regarding your conviction, sentence, or commitment that you or your attorney did not make on appeal,
explain why the claim was not made on appeal:

1 1. Administrative review:
a. If your petition concerns conditions of confinement or other claims for which there are administrative remedies, failure to exhaust
administrative remedies may result in the denial of your petition, even if it is otherwise meritorious.(See In re Muszalski(1975)
52 Cal.App.3d 500.) Explain what administrative review you sought or explain why you did not seek such review:

b. Did you seek the highest level of administrative review available? ~ Yes rI No
I
Atfach documents that show you have exhausted your administrative remedies.
MC-275[Rev. January 1, zo~o~

PETITION FOR WRIT OF HABEAS CORPUS

Page 5 of 6

12. Other than direct appeal, have you filed any other petitions, applications, or motions with
If ves, continue with number 13.
commitment; or issue in any court? 0Yes

MC
-275
sped to this conviction,
No
If no, skip to number 15.

13. a. (1) Name of court:
( Nature of proceeding (for example,"habeas corpus petition"):
2)
( Issues raised: (a)
3)
(
b)
( Result (atfach order or explain why unavailable):
4)
( Date of decision:
5)
b. (1) Name of court:
( Nature of proceeding:
2)
( Issues raised:(a)
3)
(
b)
( Result (attach orderor explain why unavailable):
4)
( Date of decision:
5)
c For additions!priorpe6fions, applications, ormoSons, provide the same information on a separate page.
.
14. If any of the courts listed in number 13 held a hearing, state name of court, date of hearing, nature o. hearing, and result:

15. Explain any delay in the discovery of the claimed grounds for relief and in raising the claims in this petition.(See /n re Swain (1949)
4
3 Cal2d 300, 304.)

16. Are you presently represented by counsel? 0 Yes

Q No

If yes, state the attorney's name and address, if known:

17. Do you have any petition, appeal, or other matter pending in any court? ~ Yes

~ No

If yes, explain:

18. If this petition might lawfully have been made to a lower court, state the circumstances justifying an application to this court:

I, the undersigned, say: I am the petitioner in this action. I declare under penalty of perjury under the laws of the State of California
that the foregoing allegations and statements are true and correct, except as to mafters that are stated on my information and belief,
and as to those matters, I believe them to be true.
Date:

'
(SI NATURE OF PETITIONER)

~- l~ ~ l~
MC-275 [Rev. Januay 1, 2010]

PETITION FOR WRIT OF HABEAS CORPUS

Faye s of s

APP-009
PROQF OF SERVICE (Court of Appeal)
[ Mail ~ Personal Service
~]

FOR COURT USE ONLY

Notice: This form may be used to provide proof that a document has been
served in a proceeding in the Court of Appeal. Please read Information
Sheet for Proof of Service(Court of Appeal)(form APP-009-INFO) before
completing this form.
Case Name'
Court of Appeal Case Number:
Superior CouA Case Number:
1. At the time of service I was at least 18 years of age and not a party to this legal action.
2 My
.

~ residence 0 business

address is (specify):

3 I mailed or personally delivered a copy of the following document as indicated below (frll in fhe name of the document you mailed or
.
delivered and complete either a or bJ:

a. ~ Mail. I mailed a copy of the document identified above as follows:
(1) I enclosed a copy of the document identified above in an envelope or envelopes and
( 0deposited the sealed envelopes) with the U.S. Postal Service, with the postage fully prepaid.
a)
(b)0placed the envelopes)for collection and mailing on the date and at the place shown in items below,
following our ordinary business practices. I am readily familiar with this business's practice of collecting
and processing correspondence for mailing. On the same day that correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the U.S. Postal Service, in a
sealed envelopes) with postage fully prepaid.
(2) Date mailed:
(
3) The envelope was or envelopes were addressed as follows:
a) Person served:
(
~~) Name:
(
ii) Address:

(b) Person served:
(i) Name: ~y`n ~z~'
(ii) Address: p0 ~ ~ ~~ ~_~ c
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(c) Person served:
( - Name:
i)
(ii)

Address:

0 Additional persons served are listed on the attached page (write APP-009, lfem 3a" at the fop of the page).
(
4) I am a resident. of or employed in the county where the mailing occurred. The document was mailed from
( and state):
city
Form Approved for Optional Use
Judicial Coundl of California
APP-009[New January 1, 2009

PROOF OF SERVICE
(Court of Appeal)

Page 1 of 2

wwwcourtrn~o.ca.gov

APP-009
CASE NUMBER:

CASE NAME:

3 b. ~ personal delivery. I personally delivered a copy of the document identified above as follows:
.
(1) Person served:
(a) Name:
(b) Address where delivered:

( Date delivered:
c)
(d) Time delivered:

( Person served:
2)
( Name:
a)

G ,~ —

(b) Address where delivered:

( Date delivered:
~)
(d) Time delivered:

( Person served:
3;
( Name:
a)
(b) Address where delivered:

( Date delivered:
c)
(d) Time delivered:

Names and addresses of additional persons served and delivery dates and times are listed on the attached page (write
APP-009, Item 36" at the top of fhe page).

declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date:

~~'~ ~'~~ - ~ ~

1

(
TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM)

APP-009[New January 1, 2009]

SIGNATURE OF PERSON COMPLETING THIS FORM)

PROOF OF SERVICE
(Court of Appeal)

Page 2 of 2

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