Fuller v. State of California

Filing 27

ORDER OF DISMISSAL WITH LEAVE TO AMEND. The petition is DISMISSED with leave to amend. Petitioner must, within twenty-eight (28) days of the date this order is filed, file an amended petition challenging the lawfulness of the state conviction for whi ch he is currently incarcerated. The amended petition must include the caption and civil case number used in this order, No. C 10-05501 EJD (PR), and must include the words AMENDED PETITION on the first page. Failure to file a timely response in acco rdance with this order will result in the dismissal of this action without prejudice and without further notice to Petitioner. The Clerk shall include two copies of the court's form petition with a copy of this order to Petitioner. Amended Petition due by 3/6/2013. Signed by Judge Edward J. Davila on 2/4/2013. (Attachments: # 1 Prisoner Habeas Petition)(ecg, COURT STAFF) (Filed on 2/6/2013)

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PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
Name _________________________________________________________________
(Last)
(First)
(Initial)

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Prisoner Number ______________________________________________________
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Institutional Address ________________________________________________
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______________________________________________________________________
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

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_____________________________________

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)
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(Enter the full name of plaintiff in this action.)

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vs.
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_____________________________________
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_____________________________________
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_____________________________________
(Enter the full name of respondent(s) or jailor in this action)

Case No. _____________________
(To be provided by the clerk of court)

PETITION FOR A WRIT
OF HABEAS CORPUS

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Read Comments Carefully Before Filling In

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When and Where to File

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You should file in the Northern District if you were convicted and sentenced in one of these

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counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa,

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San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo and Sonoma. You should also file in

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this district if you are challenging the manner in which your sentence is being executed, such as loss of

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good time credits, and you are confined in one of these counties. Habeas L.R. 2254-3(a).

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If you are challenging your conviction or sentence and you were not convicted and sentenced in

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one of the above-named fifteen counties, your petition will likely be transferred to the United States

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District Court for the district in which the state court that convicted and sentenced you is located. If

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you are challenging the execution of your sentence and you are not in prison in one of these counties,

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your petition will likely be transferred to the district court for the district that includes the institution

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where you are confined. Habeas L.R. 2254-3(b).
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Who to Name as Respondent

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You must name the person in whose actual custody you are. This usually means the Warden or

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jailor. Do not name the State of California, a city, a county or the superior court of the county in which

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you are imprisoned or by whom you were convicted and sentenced. These are not proper

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respondents.

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If you are not presently in custody pursuant to the state judgment against which you seek relief

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but may be subject to such custody in the future (e.g., detainers), you must name the person in whose

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custody you are now and the Attorney General of the state in which the judgment you seek to attack

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was entered.

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A. INFORMATION ABOUT YOUR CONVICTION AND SENTENCE
1. What sentence are you challenging in this petition?
(a)

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Name and location of court that imposed sentence (for example; Alameda
County Superior Court, Oakland):

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Court

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Location

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(b)

Case number, if known

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(c)

Date and terms of sentence

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(d)

Are you now in custody serving this term? (Custody means being in jail, on

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Name of Institution:

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No

Where?

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Yes

parole or probation, etc.)

Address:

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2. For what crime were you given this sentence? (If your petition challenges a sentence for

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more than one crime, list each crime separately using Penal Code numbers if known. If you are

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challenging more than one sentence, you should file a different petition for each sentence.)

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3. Did you have any of the following?

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Arraignment:

Yes

No

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Preliminary Hearing:

Yes

No

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Motion to Suppress:

Yes

No

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4. How did you plead?

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Guilty

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Any other plea (specify)

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Not Guilty

Nolo Contendere

5. If you went to trial, what kind of trial did you have?
Jury

Judge alone

Judge alone on a transcript

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6. Did you testify at your trial?

Yes

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No

7. Did you have an attorney at the following proceedings:

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(a)

Arraignment

Yes

No

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(b)

Preliminary hearing

Yes

No

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(c)

Time of plea

Yes

No

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(d)

Trial

Yes

No

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(e)

Sentencing

Yes

No

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(f)

Appeal

Yes

No

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(g)

Other post-conviction proceeding

Yes

No

Yes

No

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8. Did you appeal your conviction?
(a)

If you did, to what court(s) did you appeal?

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Court of Appeal

Yes

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Year:

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Supreme Court of California

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Year:

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Any other court

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Year:

No

Yes

No

Yes

No

Result:

Result:

Result:

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(b)

If you appealed, were the grounds the same as those that you are raising in this

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petition?

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Yes

No

Yes

No

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(c)

Was there an opinion?

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(d)

Did you seek permission to file a late appeal under Rule 31(a)?
Yes

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No

If you did, give the name of the court and the result:

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9. Other than appeals, have you previously filed any petitions, applications or motions with respect to

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this conviction in any court, state or federal?

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Yes

No

[Note: If you previously filed a petition for a writ of habeas corpus in federal court that

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challenged the same conviction you are challenging now and if that petition was denied or dismissed

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with prejudice, you must first file a motion in the United States Court of Appeals for the Ninth Circuit

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for an order authorizing the district court to consider this petition. You may not file a second or

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subsequent federal habeas petition without first obtaining such an order from the Ninth Circuit. 28

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U.S.C. §§ 2244(b).]

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(a)

If you sought relief in any proceeding other than an appeal, answer the following

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questions for each proceeding. Attach extra paper if you need more space.

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I.

Name of Court:

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Type of Proceeding:

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Grounds raised (Be brief but specific):

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a.

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b.

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c.

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d.

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Result:

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II.

Date of Result:

Name of Court:

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Type of Proceeding:

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Grounds raised (Be brief but specific):
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a.

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b.

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c.

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d.

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Result:
III.

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Date of Result:

Name of Court:

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Type of Proceeding:

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Grounds raised (Be brief but specific):

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a.

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b.

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c.

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d.

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Result:
IV.

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Date of Result:

Name of Court:

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Type of Proceeding:

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Grounds raised (Be brief but specific):

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a.

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b.

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c.

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d.

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Result:

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(b)

Date of Result:

Is any petition, appeal or other post-conviction proceeding now pending in any court?

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Yes

No

Name and location of court:
B. GROUNDS FOR RELIEF

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State briefly every reason that you believe you are being confined unlawfully. Give facts to

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support each claim. For example, what legal right or privilege were you denied? What happened?

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Who made the error? Avoid legal arguments with numerous case citations. Attach extra paper if you
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need more space. Answer the same questions for each claim.
[Note: You must present ALL your claims in your first federal habeas petition. Subsequent

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petitions may be dismissed without review on the merits. 28 U.S.C. §§ 2244(b); McCleskey v. Zant,

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499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991).]

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Claim One:

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Supporting Facts:

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Claim Two:

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Supporting Facts:

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Claim Three:

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Supporting Facts:

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If any of these grounds was not previously presented to any other court, state briefly which
grounds were not presented and why:

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PET. FOR WRIT OF HAB. CORPUS

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List, by name and citation only, any cases that you think are close factually to yours so that they

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are an example of the error you believe occurred in your case. Do not discuss the holding or reasoning

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of these cases:

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Do you have an attorney for this petition?

Yes

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No

If you do, give the name and address of your attorney:

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WHEREFORE, petitioner prays that the Court grant petitioner relief to which s/he may be entitled in
this proceeding. I verify under penalty of perjury that the foregoing is true and correct.

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Executed on

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Signature of Petitioner

Date

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(Rev. 6/02)

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PET. FOR WRIT OF HAB. CORPUS

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