Shaw v. Allison

Filing 4

ORDER For Petitioner to File a First Amended Petition, signed by Magistrate Judge Jennifer L. Thurston on 11/23/2010. (Amended Complaint due by 12/27/2010.) (Attachments: # 1 Amended 2254 Petition Form) (Marrujo, C)

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( H C ) Shaw v. Allison D o c . 4 Att. 1 PETITION UNDER 28 USC § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (If petitioner is attacking a judgment which imposed a sentence to be served in the future, petitioner must fill in the name of the state where the judgment was entered. If petitioner has a sentence to be served in the future under a federal judgment which he wishes to attack, he should file a motion under 28 U.S.C. § 2255, in the federal court which entered the judgment.) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY Instructions­Read Carefully (1) This petition must be legibly handwritten or typewritten, and signed by the petitioner under penalty of perjury. Any false statement of 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. If you have more than 4 grounds for relief, you may attach pages with the remaining grounds; however, the format of the attached pages must be the same as the petition and you must provide only a brief statement of facts. No citation to legal authority is required. A brief or memorandum in support of the petition may also be attached; however, the form petition must be complete in itself and may not simply refer to the attachments. Upon receipt of a fee of $5 your petition will be filed if it is in proper order. If you do not have the necessary funds for transcripts, counsel, appeal and other costs connected with a petition of this type, you may request permission to proceed in forma pauperis, in which event you must execute form AO-240 or other form required by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed in forma pauperis, you must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to your credit in any account in the institution. Only judgments entered by one court may be challenged in a single petition. If you seek to challenge judgments entered by different courts either in the same state of in different states, you must file separate petitions as to each court. You must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction. When the petition 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, Suite 1501 Fresno, California 93721 (8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency. (Revised 2/15/06) (1 ) (2) (3) (4) (5) (6) (7) Dockets.Justia.com AO 241 (Rev. 5/85) P E T I T I O N UNDER 28 USC § 2254 FOR W R I T OF H A B E A S CORPUS BY A PERSON IN STATE CUSTODY U n i te d States District Court N ame P la c e of Confinement D is tr ic t P r is o n e r No. C a s e No. N a m e of Petitioner (include name under which convicted) V. T h e Attorney General of the State of: N a m e of Respondent (authorized person having custody of petitioner) PETITION 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 G No G D id you appeal from the judgment of conviction? Y es G No G (2 ) 8. AO 241 (Rev. 5/85) 9. I f you did appeal, answer the following: ( a ) Name of court ( b ) Result ( c ) Date of result and citation, if known ( d ) Grounds raised ( e ) If you sought further review of the decision on appeal by a higher state court, please answer the following: ( 1 ) Name of court ( 2 ) Result (3) Date of result and citation, if known ( 4 ) Grounds raised ( f ) I f you filed a petition for certiorari in the United States Supreme Court, please answer the following with respect to e a c h direct appeal: ( 1 ) Name of court ( 2 ) Result (3) Date of result and citation, if known ( 4 ) Grounds raised 10. O th e r than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, a p p l i c a t i o n s , or motions with respect to this judgment in any court, state or federal? Y es G No 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 (3) AO 241 (Rev. 5/85) ( 4 ) D id you receive an evidentiary hearing on your petition, application or motion? Y es G No 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 ( 4 ) D id you receive an evidentiary hearing on your petition, application or motion? Y es G No G ( 5 ) Result (6) Date of result (c) D id you appeal to the highest state 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 unlawfully. Summarize briefly the facts s u p p o r tin g each ground. If necessary, you may attach pages stating additional grounds and facts supporting same. C A U T IO N : In order to proceed in the federal court, you must ordinarily first exhaust your available state court r e m e d ie s as to each ground on which you request action by the federal court. If you fail to set forth all grounds in this p e t itio n , you may be barred from presenting additional grounds at a later date. (4 ) AO 241 (Rev. 5/85) F o r your information, the following is a list of the most frequently raised grounds for relief in habeas corpus p r o c e e d in g s . Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any g r o u n d s which you may have other than those listed if you have exhausted your state court remedies with respect to them. H o w e v e r , you should raise in this petition all available grounds (relating to this conviction) on which you base your a l l e g a t i o n s 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 petition 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 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. ( 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): (5 ) AO 241 (Rev. 5/85) C. G r o u n d three: S u p p o r tin g FACTS (state briefly without citing cases or law): 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 in any other court, state or federal, state b r ie fly what grounds were not so presented, and give your reasons for not presenting them: 14. D o you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Y es G No 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 (6 ) AO 241 (Rev. 5/85) ( c ) A t trial ( d ) A t sentencing (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 th e same time? Y es G No G D o you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Y es G No 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 s e r v e d in the future? Y es G No G W h e r e fo r e , petitioner prays that the Court grant petitioner 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 Petitioner (7)

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