Perez v. Allison

Filing 11

ORDER DIRECTING PETITIONER TO FILE A SECOND AMENDED COMPLAINT. The second amended petition must be filed no later than thirty (30) days from the date this order is filed. Failure to file a timely response in accordance with this order will result in the dismissal of this action without prejudice and without further notice to Petitioner. The Clerk is instructed to include two copies of the court's form petition to Petitioner with a copy of this order. Signed by Judge Edward J. Davila on 6/23/2011. (Attachments: # 1 Form Habeas Petition)(ecg, COURT STAFF) (Filed on 6/24/2011)

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1 2 PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY Name _________________________________________________________________ (Last) (First) (Initial) 3 Prisoner Number ______________________________________________________ 4 Institutional Address ________________________________________________ 5 7 ______________________________________________________________________ ===================================================================== UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 8 _____________________________________ 6 ) ) ) ) ) ) ) ) ) ) ) ) ) ) (Enter the full name of plaintiff in this action.) 9 vs. 10 _____________________________________ 11 12 _____________________________________ 13 14 _____________________________________ (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 15 16 ===================================================================== Read Comments Carefully Before Filling In 17 When and Where to File 18 You should file in the Northern District if you were convicted and sentenced in one of these 19 counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, 20 San Benito, Santa Clara, Santa Cruz, San Francisco, San Mateo and Sonoma. You should also file in 21 this district if you are challenging the manner in which your sentence is being executed, such as loss of 22 good time credits, and you are confined in one of these counties. Habeas L.R. 2254-3(a). 23 If you are challenging your conviction or sentence and you were not convicted and sentenced in 24 one of the above-named fifteen counties, your petition will likely be transferred to the United States 25 District Court for the district in which the state court that convicted and sentenced you is located. If 26 you are challenging the execution of your sentence and you are not in prison in one of these counties, 27 your petition will likely be transferred to the district court for the district that includes the institution 28 where you are confined. Habeas L.R. 2254-3(b). PET. FOR WRIT OF HAB. CORPUS -1- 1 Who to Name as Respondent 2 You must name the person in whose actual custody you are. This usually means the Warden or 3 jailor. Do not name the State of California, a city, a county or the superior court of the county in which 4 you are imprisoned or by whom you were convicted and sentenced. These are not proper 5 respondents. 6 If you are not presently in custody pursuant to the state judgment against which you seek relief 7 but may be subject to such custody in the future (e.g., detainers), you must name the person in whose 8 custody you are now and the Attorney General of the state in which the judgment you seek to attack 9 was entered. 10 11 12 A. INFORMATION ABOUT YOUR CONVICTION AND SENTENCE 1. What sentence are you challenging in this petition? (a) 13 Name and location of court that imposed sentence (for example; Alameda County Superior Court, Oakland): 14 Court 15 Location 16 (b) Case number, if known 17 (c) Date and terms of sentence 18 (d) Are you now in custody serving this term? (Custody means being in jail, on 19 20 Name of Institution: 22 No Where? 21 Yes parole or probation, etc.) Address: 23 2. For what crime were you given this sentence? (If your petition challenges a sentence for 24 more than one crime, list each crime separately using Penal Code numbers if known. If you are 25 challenging more than one sentence, you should file a different petition for each sentence.) 26 27 28 PET. FOR WRIT OF HAB. CORPUS -2- 1 3. Did you have any of the following? 2 Arraignment: Yes No 3 Preliminary Hearing: Yes No 4 Motion to Suppress: Yes No 5 4. How did you plead? 6 Guilty 7 Any other plea (specify) 8 9 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 10 6. Did you testify at your trial? Yes 11 No 7. Did you have an attorney at the following proceedings: 12 (a) Arraignment Yes No 13 (b) Preliminary hearing Yes No 14 (c) Time of plea Yes No 15 (d) Trial Yes No 16 (e) Sentencing Yes No 17 (f) Appeal Yes No 18 (g) Other post-conviction proceeding Yes No Yes No 19 20 8. Did you appeal your conviction? (a) If you did, to what court(s) did you appeal? 21 Court of Appeal Yes 22 Year: 23 Supreme Court of California 24 Year: 25 Any other court 26 Year: No Yes No Yes No Result: Result: Result: 27 28 (b) If you appealed, were the grounds the same as those that you are raising in this PET. FOR WRIT OF HAB. CORPUS -3- petition? 1 Yes No Yes No 2 (c) Was there an opinion? 3 (d) Did you seek permission to file a late appeal under Rule 31(a)? Yes 4 No If you did, give the name of the court and the result: 5 6 7 8 9. Other than appeals, have you previously filed any petitions, applications or motions with respect to 9 this conviction in any court, state or federal? 10 Yes No [Note: If you previously filed a petition for a writ of habeas corpus in federal court that 11 challenged the same conviction you are challenging now and if that petition was denied or dismissed 12 with prejudice, you must first file a motion in the United States Court of Appeals for the Ninth Circuit 13 for an order authorizing the district court to consider this petition. You may not file a second or 14 subsequent federal habeas petition without first obtaining such an order from the Ninth Circuit. 28 15 U.S.C. §§ 2244(b).] 16 (a) If you sought relief in any proceeding other than an appeal, answer the following 17 questions for each proceeding. Attach extra paper if you need more space. 18 I. Name of Court: 19 Type of Proceeding: 20 Grounds raised (Be brief but specific): 21 a. 22 b. 23 c. 24 d. 25 Result: 26 II. Date of Result: Name of Court: 27 Type of Proceeding: 28 Grounds raised (Be brief but specific): PET. FOR WRIT OF HAB. CORPUS -4- 1 a. 2 b. 3 c. 4 d. 5 Result: III. 6 Date of Result: Name of Court: 7 Type of Proceeding: 8 Grounds raised (Be brief but specific): 9 a. 10 b. 11 c. 12 d. 13 Result: IV. 14 Date of Result: Name of Court: 15 Type of Proceeding: 16 Grounds raised (Be brief but specific): 17 a. 18 b. 19 c. 20 d. 21 Result: 22 (b) Date of Result: Is any petition, appeal or other post-conviction proceeding now pending in any court? 23 24 25 Yes No Name and location of court: B. GROUNDS FOR RELIEF 26 State briefly every reason that you believe you are being confined unlawfully. Give facts to 27 support each claim. For example, what legal right or privilege were you denied? What happened? 28 Who made the error? Avoid legal arguments with numerous case citations. Attach extra paper if you PET. FOR WRIT OF HAB. CORPUS -5- 1 2 need more space. Answer the same questions for each claim. [Note: You must present ALL your claims in your first federal habeas petition. Subsequent 3 petitions may be dismissed without review on the merits. 28 U.S.C. §§ 2244(b); McCleskey v. Zant, 4 499 U.S. 467, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (1991).] 5 Claim One: 6 7 Supporting Facts: 8 9 10 11 Claim Two: 12 13 Supporting Facts: 14 15 16 17 Claim Three: 18 19 Supporting Facts: 20 21 22 23 24 If any of these grounds was not previously presented to any other court, state briefly which grounds were not presented and why: 25 26 27 28 PET. FOR WRIT OF HAB. CORPUS -6- 1 List, by name and citation only, any cases that you think are close factually to yours so that they 2 are an example of the error you believe occurred in your case. Do not discuss the holding or reasoning 3 of these cases: 4 5 6 7 Do you have an attorney for this petition? Yes 8 No If you do, give the name and address of your attorney: 9 10 11 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. 12 13 Executed on 14 Signature of Petitioner Date 15 16 17 18 19 20 (Rev. 6/02) 21 22 23 24 25 26 27 28 PET. FOR WRIT OF HAB. CORPUS -7-

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