Herndon v. California Penal Code System et al

Filing 16

ORDER OF DISMISSAL. For the reasons stated above, this action is DISMISSED without prejudice to refiling as a habeas action. The Clerk shall enclose two copies of the court's form petition with a copy of this order to Plaintiff. Signed by Judge Edward J. Davila on 7/18/2012. (Attachments: # 1 Form Habeas Petition)(ecg, COURT STAFF) (Filed on 7/19/2012)

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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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PET. FOR WRIT OF HAB. CORPUS

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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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