Guizar v. California City Correctional Center

Filing 4

{VACATED PER ORDER 10 } ORDER STRIKING Unsigned Complaint, And Requiring Plaintiff To File Signed Complaint Within Thirty Days (Doc. 2 ), ORDER Requiring Plaintiff To File Application To Proceed In Forma Pauperis Or Pay Filing Fee Within Thirty Days, signed by Magistrate Judge Gary S. Austin on 8/7/2009. (Complaint Deadline: 9/10/2009, Motion for IFP due by 9/10/2009) (Attachments: # 1 Complaint, # 2 IFP Application & Instructions)(Scrivner, E)

OAO 243

(Rev. 2/95)

M O T I O N UNDER 28 USC § 2255 TO VACATE, SET ASIDE, OR CORRECT S E N T E N C E BY A PERSON IN FEDERAL CUSTODY (If movant has a sentence to be served in the future under a federal judgment which he or she wishes to a t t a c k , the movant should file a motion in the federal court which entered the judgment.) M O T I O N TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY E x p l a n a t i o n and Instructions­Read Carefully

( 1 ) T h is motion must be legibly handwritten or typewritten, and signed by the movant under penalty of perjury. Any false statement o f a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. ( 2 ) A d d itio n a l pages are not permitted except with respect to the facts which you rely upon to support your grounds for relief. No c i t a t i o n of authorities need be furnished. If briefs or arguments are submitted, they should be submitted in the form of a separate m em o rand um . ( 3 ) U p o n receipt, your motion will be filed if it is in proper order. No fee is required with this motion. ( 4 ) I f you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, y o u may request permission to proceed in forma pauperis, in which event you must execute form AO 240 or any other form r e q u i r e d by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma p a u p e r i s , you must have an authorized officer at the penal institution complete the certificate as to the amount of money and s e c u r i t i e s on deposit to your credit in any account in the institution. (5) O n ly judgments entered by one court may be challenged in a single motion. If you seek to challenge judgments entered by d i ffe r e n t judges or divisions either in the same district or in different districts, you must file separate motions as to each such ju d g m e n t. ( 6 ) Y o u r attention is directed to the fact that you must include all grounds for relief and all facts supporting such grounds for relief in the motion you file seeking relief from any judgment of conviction. ( 7 ) W h e n the motion is fully completed, the original and at least two copies must be mailed to the Clerk of the United States District Court whose address is Clerk, U.S. District Court 2500 Tulare Street, Room 1501 Fresno, California 93721

( 8 ) M o t i o n s which do not conform to these instructions will be returned with a notation as to the deficiency.

AO 243

(Rev. 2/95)

U n i te d States District Court
N a m e of Movant P la c e of Confinement

M O T I O N UNDER 28 USC § 2255 TO VACATE, SET ASIDE, OR CORRECT S E N T E N C E BY A PERSON IN FEDERAL CUSTODY D is tric t P r is o n e r No. C a s e No.

U N I T E D STATES OF AMERICA

V.
(name under which convicted)

MOTION
1. N a m e and location of court which entered the judgment of conviction under attack

2. 3. 4.

D a te of judgment of conviction L e n g th of sentence N a t u r e of offense involved (all counts)

5.

W h a t was your plea? (Check one) ( a ) Not guilty G ( b ) Guilty ( c ) Nolo contendere

G G

I f you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details:

6.

I f you pleaded not guilty, what kind of trial did you have? (Check one) ( a ) Jury G ( b ) Judge only

G

7.

D i d you testify at the trial? Y es No G G D id you appeal from the judgment of conviction? Y es No G G

8.

(2 )

AO 243

(Rev. 2/95)

9.

I f you did appeal, answer the following: ( a ) Name of court ( b ) Result ( c ) Date of result

10.

O th e r than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, o r motions with respect to this judgment in any federal court? Y es No G G I f your answer to 10 was "yes," give the following information: ( a ) (1) Name of court ( 2 ) Nature of proceeding

11.

(3) Grounds raised

(4) D id you receive an evidentiary hearing on your petition, application or motion? Y es No G G ( 5 ) Result (6) Date of result (b) A s to any second petition, application or motion give the same information: ( 1 ) Name of court (2) Name of proceeding

( 3 ) Grounds raised

(3 )
AO 243 (Rev. 2/95)

( 4 ) Did you receive an evidentiary hearing on your petition, application or motion?

Yes ( 5 ) Result

G

No

G

(6) Date of result (c) D id you appeal, to an appellate federal court having jurisdiction, the result of action taken on any petition, application or m o tio n ? (1) F i r s t petition, etc. Y es G No G ( 2 ) S e c o n d petition, etc. Y es

G

No

G

( d ) I f you did not appeal from the adverse action on any petition, application or motion, explain briefly why you did not:

12.

S t a te concisely every ground on which you claim that you are being held in violation of the constitution, laws or treaties of th e United States. Summarize briefly the facts supporting each ground. If necessary, you may attach pages stating additional g r o u n d s and facts supporting same. C A U T IO N : If you fail to set forth all grounds in this motion, you may be barred from presenting additional grounds at a later d a te . F o r your information, the following is a list of the most frequently raised grounds for relief in these proceedings. Each s ta t e m e n t preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you have o t h e r than those listed. However, you should raise in this motion all available grounds (relating to this conviction) on which y o u based your allegations that you are being held in custody unlawfully. D o not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. T h e motion will be returned to you if you merely check (a) through (j) or any one of these grounds. ( a ) C o n v ic tio n obtained by plea of guilty which was unlawfully induced or not made voluntarily or with understanding of th e nature of the charge and the consequences of the plea. ( b ) C o n v ic t io n obtained by use of coerced confession.

(4 )
AO 243 (Rev. 2/95)

( c ) C o n v ic tio n obtained by use of evidence gained pursuant to an unconstitutional search and seizure. ( d ) C o n v i c t i o n obtained by use of evidence obtained pursuant to an unlawful arrest.

(e) C o n v ic t io n obtained by a violation of the privilege against self-incrimination. ( f) C o n v ic tio n obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence f a v o r a b l e to the defendant. ( g ) C o n v i c t i o n obtained by a violation of the protection against double jeopardy. ( h ) C o n v ic tio n obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. ( i ) D e n i a l of effective assistance of counsel. ( j ) D e n i a l of right of appeal. A . G r o u n d one:

S u p p o r tin g FACTS (state briefly without citing cases or law):

B.

G r o u n d two:

S u p p o r tin g FACTS (state briefly without citing cases or law):

C.

G r o u n d three:

S u p p o r tin g FACTS (state briefly without citing cases or law):

(5 )
AO 243 (Rev. 2/95)

D.

G r o u n d four:

Supporting FACTS (state briefly without citing cases or law):

13.

I f any of the grounds listed in 12A, B, C, and D were not previously presented, state briefly what grounds were not so p r e s e n te d , and give your reasons for not presenting them:

14.

D o you have any petition or appeal now pending in any court as to the judgment under attack? Y es No G G G iv e the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked h e r e in : ( a ) A t preliminary hearing

15.

(b) A t arraignment and plea

( c ) A t trial

( d ) A t sentencing

(6)
AO 243 (Rev. 2/95)

( e ) O n appeal

(f) I n any post-conviction proceeding

(g) O n appeal from any adverse ruling in a post-conviction proceeding

16.

W e r e you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at a p p r o x im a t e ly the same time? Y es No G G D o you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Y es No G G ( a ) I f so, give name and location of court which imposed sentence to be served in the future:

17.

(b) G i v e date and length of the above sentence:

(c) H a v e you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Y es G N o G W h e r e fo r e , movant prays that the Court grant him all relief to which he may be entitled in this proceeding.

Signature of Attorney (if any)

I declare under penalty of perjury that the foregoing is true and correct. Executed on

Date

Signature of Movant

(7 )