Goldberg v. Allenby et al

Filing 16

ORDER Adopting 15 FINDINGS AND RECOMMENDATIONS to Dismiss Complaint For Failure to State a Claim and Require Plaintiff to File a Habeas Petition or Notice of Voluntary Dismissal; Clerk to Send Plaintiff Habeas Petition Form; Case to Remain Open; Thirty (30) Day Deadline signed by District Judge Lawrence J. O'Neill on 3/18/2015. (Attachments: # 1 Habeas Petition)(Sant Agata, S)

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
Instructions–Read 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.

(2)

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.

(3)

Upon receipt of a fee of $5 your petition will be filed if it is in proper order.

(4)

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.

(5)

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.

(6)

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.

(7)

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)

AO 241

(Rev. 5/85)

PETITION UNDER 28 USC § 2254 FOR W RIT OF
HABEAS CORPUS BY A PERSON IN STATE CUSTODY
District

United States District Court
Name

Prisoner No.

Case No.

Place of Confinement

Name of Petitioner ( include name under which convicted)

Name of Respondent (authorized person having custody of petitioner)
V.

The Attorney General of the State of:

PETITION
1.

Name and location of court which entered the judgment of conviction under attack

2.

Date of judgment of conviction

3.

Length of sentence

4.

Nature of offense involved (all counts)

5.

W hat was your plea? (Check one)
(a) Not guilty
G

G
G

(b) Guilty
(c) Nolo contendere

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

6.

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

G

7.

Did you testify at the trial?
Yes
G No G

8.

Did you appeal from the judgment of conviction?
Yes
G No G
(2)

AO 241

9.

(Rev. 5/85)

If 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) If you filed a petition for certiorari in the United States Supreme Court, please answer the following with respect to
each direct appeal:
(1) Name of court
(2) Result

(3) Date of result and citation, if known
(4) Grounds raised

10.

Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions,
applications, or motions with respect to this judgment in any court, state or federal?
Yes
G No G

11.

If your answer to 10 was “yes,” give the following information:
(a) (1) Name of court
(2) Nature of proceeding

(3) Grounds raised

(3)

AO 241

(Rev. 5/85)

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

(3) Grounds raised

(4) Did you receive an evidentiary hearing on your petition, application or motion?
Yes
G No G
(5) Result
(6) Date of result
(c) Did you appeal to the highest state court having jurisdiction the result of action taken on any petition, application or
motion?
(1) First petition, etc.
Yes
G No G
(2) Second petition, etc.

Yes

G

No

G

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

12.

State concisely every ground on which you claim that you are being held unlawfully. Summarize briefly the facts
supporting each ground. If necessary, you may attach pages stating additional grounds and facts supporting same.
C AU TIO N : In order to proceed in the federal court, you must ordinarily first exhaust your available state court
remedies as to each ground on which you request action by the federal court. If you fail to set forth all grounds in this
petition, you may be barred from presenting additional grounds at a later date.
(4)

AO 241

(Rev. 5/85)

For your information, the following is a list of the most frequently raised grounds for relief in habeas corpus
proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any
grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them.
However, you should raise in this petition all available grounds (relating to this conviction) on which you base your
allegations that you are being held in custody unlawfully.
Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts.
The petition will be returned to you if you merely check (a) through (j) or any one of these grounds.
(a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of
the nature of the charge and the consequences of the plea.
(b) Conviction obtained by use of coerced confession.
(c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure.
(d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest.
(e) Conviction obtained by a violation of the privilege against self-incrimination.
(f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence
favorable to the defendant.
(g) Conviction obtained by a violation of the protection against double jeopardy.
(h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled.
(i) Denial of effective assistance of counsel.
(j) Denial of right of appeal.
A. Ground one:

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

B.

Ground two:

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

(5)

AO 241

(Rev. 5/85)

C.

Ground three:

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

D. Ground four:

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

13.

If any of the grounds listed in 12A, B, C, and D were not previously presented in any other court, state or federal, state
briefly what grounds were not so presented, and give your reasons for not presenting them:

14.

Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack?
Yes
G No G

15.

Give the name and address, if known, of each attorney who represented you in the following stages of the judgment attacked
herein:
(a) At preliminary hearing

(b) At arraignment and plea

(6)

AO 241

(Rev. 5/85)

(c) At trial

(d) At sentencing

(e) On appeal

(f) In any post-conviction proceeding

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

16.

W ere you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at
the same time?
Yes
G No G

17.

Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack?
Yes
G No G
(a) If so, give name and location of court which imposed sentence to be served in the future:

(b) Give date and length of the above sentence:

(c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be
served in the future?
Yes
G No G
W herefore, 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)