Reshard Benard v. Denham

Filing 2

ORDER DISMISSING PETITION for Writ of Habeas Corpus with Leave to Amend signed by Magistrate Judge Sheila K. Oberto on 02/13/2018. Amended Complaint due by 3/19/2018. (Attachments: # 1 Petition for Writ of Habeas Corpus)(Flores, E)

United States District Court / Eastern District of California

28 U.S.C. § 2241
FORMS AND INSTRUCTIONS
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN FEDERAL CUSTODY
UNDER 28 U.S.C. § 2241, et seq.

CONTENTS OF THIS PACKET:
1.
2.

(form) “Petition for Writ of Habeas Corpus”
(form) “Application to Proceed in Forma Pauperis” - with information sheet

INSTRUCTIONS -- READ CAREFULLY
1.

This petition must be an original (not a photocopy), legibly handwritten or typewritten,
and signed by the petitioner under penalty of perjury. You must set forth CONCISELY
(briefly and to the point) the answer to each question in the proper space on the form.
Any false statement of a material fact may serve as the basis for prosecution and
conviction for perjury.

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.

Only one sentence, conviction, or parole matter may be challenged in a single petition. If
you challenge more than one, you must do so by separate petition.

4.

The fee to file a petition for writ of habeas corpus is $5.00, and you should submit the fee
with your petition. If you do not have the necessary filing fee, you may request
permission to proceed in forma pauperis, in which event you must complete and submit
an Application to Proceed In Forma Pauperis, setting forth information establishing your
inability to prepay the fees. You must have an authorized officer at the penal institution
complete the certificate as to the amount of money on deposit to your credit in any
account in the institution. You must also submit a certified copy of your trust account
statement reflecting the prior 6 months of transactions.
1

5.

When the petition is fully completed, the original and two copies must be mailed to the
Clerk of the United States District Court. You must determine which court has venue
(venue is the proper place -- court/district/division -- for the trial of a lawsuit).
Depending on the nature of your case, venue may be determined by factors such as
(1) location of the institution in which you are confined, (2) location of the trial court
where judgment was entered, (3) location where events occurred, or (4) residence of the
respondent(s). If you send your petition to a court lacking venue, your case may be
dismissed, transferred to another court, or mailed back to you.

6.

The Fresno Division of the United States District Court is comprised of the following
counties: Fresno, Calaveras, Inyo, Kern, Kings, Madera, Mariposa, Merced, Stanislaus,
Tulare, and Tuolomne, and the address is as follows:
Clerk, United States District Court
2500 Tulare Street, Room 1501
Fresno, California 93721
The Sacramento Division of the United States District Court is comprised of the
following counties: Alpine, Amador, Butte, Colusa, El Dorado, Glenn, Lassen, Modoc,
Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou,
Solano, Sutter, Tehama, Trinity, Yolo, and Yuba, and the address is as follows:
Clerk, United States District Court
501 “I” Street, Suite 4-200
Sacramento, California 95814
You should keep a copy of the petition for your records.

7.

Once the petition is filed, the court will review it. You will be sent a copy of any order
the court issues. Because of the large volume of cases filed by inmates pending in this
court, the court WILL NOT ANSWER INQUIRIES concerning the status of your case.

8.

You must keep the Clerk of the Court informed of any change of address. If you fail to
do so, the Clerk cannot be responsible for your failure to receive Court orders. This could
result in the dismissal of your case. (See Local Rules 11-110 and 83-182(d))

9.

The Clerk of Court cannot provide copies of documents to litigants, except at a charge of
fifty cents ($.50) per page. This charge also applies to litigants proceeding in forma
pauperis. Therefore, you must keep copies of all documents submitted to the court for
your own records.

(Revised 02/10/2006)

2

_________________________________
Name
_________________________________
Prison Number
_________________________________
_________________________________
_________________________________
Address or Place of Confinement
Note: If represented by an attorney, write attorney’s name, address & telephone number
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United States District Court
EASTERN DISTRICT OF CALIFORNIA
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_________________________________
Full Name (First, Middle, Last)

CASE NO.______________________________
(to be supplied by the Clerk of the
United States District Court)

Petitioner,
vs.
_________________________________
Name of Warden
(or other authorized person having custody of petitioner)

PETITION FOR
WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241
BY A PERSON IN FEDERAL CUSTODY

Respondent.
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PLEASE COMPLETE THE FOLLOWING (check the appropriate number):
This petition concerns:
1.
2.
3.
4.
5.
6.

a conviction
a sentence
jail or prison conditions
prison discipline
a parole problem
other

CAUTION: If you are attacking a federal conviction,
sentence or judgment, you must
first file a direct appeal or motion under
28 U.S.C. § 2255 in the federal court which
entered judgment.

___________________________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN FEDERAL CUSTODY
Page 1 of 5

PETITION

(1)

Place of detention:

(2)

Name and location of court which imposed sentence:

(3)

Offense(s) and indictment number(s) (if known) for the sentence imposed:

(4)

The date the sentence was imposed and the terms of the sentence:

(5)

What was your plea (check one):

Not guilty ( )

Guilty ( )

(6)

Kind of trial (check one):

Jury ( )

Judge only ( )

(7)

Did you appeal from the judgment of conviction or the imposition of sentence:

(8)

If you did appeal, answer the following for each appeal:

Nolo contendere ( )

Yes ( )

No ( )

FIRST APPEAL:
Name of court:
Grounds raised (list each):
1)
2)
Result/Date of result:
SECOND APPEAL:
Name of court:
Grounds raised (list each):
1)
2)
Result/Date of result:

GROUNDS FOR THIS 28 U.S.C. § 2241 PETITION
(9)

State CONCISELY every ground on which you claim that your sentence is being executed in an illegal
manner. Summarize briefly the facts supporting each ground
CAUTION:

If you fail to set forth all grounds in this petition, you may be barred from presenting
additional grounds at a later date.

___________________________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN FEDERAL CUSTODY
Page 2 of 5

º

GROUND ONE

Supporting FACTS for GROUND ONE (tell your story BRIEFLY without citing cases or law).

You must state facts, not conclusions, in support of your grounds. A rule of
thumb to follow is -- who did exactly what to violate your rights at what time or
place.

CAUTION:

º

GROUND TWO

Supporting FACTS for GROUND TWO (tell your story BRIEFLY without citing cases or law).

ADMINISTRATIVE APPEALS
(10)

Have you presented the claims raised in Question #9 of this petition to prison officials in a prison
administrations appeal?
Yes (

)

No (

)

If your answer is no, explain why not:

If your answer is yes, answer the following for each administrative appeal:
FIRST ADMINISTRATIVE APPEAL
Grounds raised (list each):
1)
2)
Result/Date of result:

Level of appeal:

SECOND ADMINISTRATIVE APPEAL
Grounds raised (list each):
1)
2)
Result/Date of result

Level of appeal:

___________________________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN FEDERAL CUSTODY
Page 3 of 5

THIRD ADMINISTRATIVE APPEAL
Grounds raised (list each):

Level of appeal:

1)
2)
Result/Date of result:
FOURTH ADMINISTRATIVE APPEAL
Grounds raised (list each):
1)
2)
Result/Date of result:
(11)

Is the grievance process completed?

Level of appeal:

Yes ( )

No ( )

PREVIOUS PETITIONS
(12)

Have you filed previous petitions for habeas corpus under 28 U.S.C. § 2241 or 28 U.S.C. § 2255, or any
other applications, petitions or motions with respect to the claims raised in Question #9 of this petition?
Yes ( )

(13)

No ( )

If your answer to Question #12 was yes, give the following information for each previous petition:
FIRST PREVIOUS PETITION
Name of court:
Nature of proceeding:
Grounds raised (list each):
1)
2)
Result/Date of result:
SECOND PREVIOUS PETITION
Name of court:
Nature of proceeding:
Grounds raised (list each):
1)
2)
Result/Date of result:

(14)

If the claims raised in Question #9 of this petition concern your conviction or sentence, explain why you
are filing your petition pursuant to § 2241 instead of § 2255.

___________________________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN FEDERAL CUSTODY
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(15)

Are you presently represented by counsel?

Yes (

)

No (

)

If so, provide your attorney’s name, address, and telephone number:

If you are seeking leave to proceed in forma pauperis, have you completed the application setting forth
the required information?

(16)

Yes (

)

No (

)

Note: If your answer is no, you must send a $5.00 filing fee to the court with your petition.

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WHEREFORE, petitioner prays that the court grant petitioner relief to which he may be entitled in this
proceeding.

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.

(Date)

(Signature of Petitioner)

(Signature of Attorney, if any)

___________________________________________________________________________________________
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241 BY A PERSON IN FEDERAL CUSTODY
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