Dayton v. State of Missouri et al

Filing 3

MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the Clerk is directed to send petitioner both a motion for leave to proceed in forma pauperis form and a § 2254 form. IT IS FURTHER ORDERED that, no later than twenty-eight (28) days from this Or der, petitioner must either pay the $5 filing fee or file a motion for leave to proceed in forma pauperis. IT IS FURTHER ORDERED that petitioner must fill out the § 2254 form and return it to the Court within twenty-eight (28) days of the date of this Order. If petitioner fails to comply with this Order, the Court may dismiss this action without further proceedings.. Signed by District Judge Audrey G. Fleissig on 3/6/2017. (Attachments: # 1 Form)(NEB)

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PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF
HABEAS CORPUS BY A PERSON IN STATE CUSTODY
United States District Court
Name

District
Docket or Case No.:

(under which you were convicted):

Place of Confinement:

Petitioner

Prisoner No.:

Respondent (authorized person having custody of petitioner)

(include the name under which you were convicted)

v.
The Attorney General of the State of

PETITION
1.

(a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know):
2.

(a) Date of the judgment of conviction (if you know):
(b) Date of sentencing:

3.

Length of sentence:

4.

In this case, were you convicted on more than one count or of more than one crime? Yes  No 

5.

Identify all crimes of which you were convicted and sentenced in this case:

6.

(a) What was your plea? (Check one)
(1)

Not guilty 

(3)

Nolo contendere (no contest) 

(2)

Guilty 

(4)

Insanity plea 

(b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or
charge, what did you plead guilty to and what did you plead not guilty to?

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(c) If you went to trial, what kind of trial did you have? (Check one)
Jury 
7.

Did you testify at a pretrial hearing, trial, or a post-trial hearing?
Yes 

8.

No 

Did you appeal from the judgment of conviction?
Yes 

9.

Judge only 

No 

If you did appeal, answer the following:
(a) Name of court:
(b) Docket or case number (if you know):
(c) Result:
(d) Date of result (if you know):
(e) Citation to the case (if you know):
(f) Grounds raised:

(g) Did you seek further review by a higher state court?

Yes 

No 

If yes, answer the following:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Result:
(4) Date of result (if you know):
(5) Citation to the case (if you know):
(6) Grounds raised:

(h) Did you file a petition for certiorari in the United States Supreme Court?
If yes, answer the following:
(1) Docket or case number (if you know):

Yes 

No 

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(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
10. Other than the direct appeals listed above, have you previously filed any other petitions,
applications, or motions concerning this judgment of conviction in any state court?
Yes  No 
11. If your answer to Question 10 was “Yes,” give the following information:
(a) (1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or
motion?

Yes 

No 

(7) Result:
(8) Date of result (if you know):
(b) If you filed any second petition, application, or motion, give the same information:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:

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(6) Did you receive a hearing where evidence was given on your petition, application, or
motion?

Yes 

No 

(7) Result:
(8) Date of result (if you know):
(c) If you filed any third petition, application, or motion, give the same information:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or
motion?

Yes  No 

(7) Result:
(8) Date of result (if you know):
(d) Did you appeal to the highest state court having jurisdiction over the action taken on your
petition, application, or motion?
(1) First petition:

Yes 

No 

(2) Second petition:

Yes 

No 

(3) Third petition:

Yes 

No 

(e) If you did not appeal to the highest state court having jurisdiction, explain why you did not:

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12. For this petition, state every ground on which you claim that you are being held in violation of
the Constitution, laws, or treaties of the United States. Attach additional pages if you have more
than four grounds. State the facts supporting each ground.
CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your
available state-court remedies on each ground on which you request action by the federal court.
Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting
additional grounds at a later date.
GROUND ONE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground One, explain why:

(c) Direct Appeal of Ground One:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes 

No 

(2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a
state trial court?

Yes 

No 

(2) If your answer to Question (d)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:

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Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?
Yes 

No 

(4) Did you appeal from the denial of your motion or petition?
Yes 

No 

(5) If your answer to Question (d)(4) is “Yes,” did you raise this issue in the appeal?
Yes 

No 

(6) If your answer to Question (d)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is “No,” explain why you did not raise this
issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative
remedies, etc.) that you have used to exhaust your state remedies on Ground One:

GROUND TWO:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

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(b) If you did not exhaust your state remedies on Ground Two, explain why:

(c) Direct Appeal of Ground Two:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes 

No 

(2) If you did not raise this issue in your direct appeal, explain why:

(d) Post-Conviction Proceedings:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a
state trial court?
Yes 

No 

(2) If your answer to Question (d)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?
Yes 

No 

(4) Did you appeal from the denial of your motion or petition?
Yes 

No 

(5) If your answer to Question (d)(4) is “Yes,” did you raise this issue in the appeal?
Yes 

No 

(6) If your answer to Question (d)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:

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Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is “No,” explain why you did not raise this
issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative
remedies, etc.) that you have used to exhaust your state remedies on Ground Two:

GROUND THREE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Three, explain why:

(c) Direct Appeal of Ground Three:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes  No 
(2) If you did not raise this issue in your direct appeal, explain why:

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(d) Post-Conviction Proceedings:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a
state trial court?

Yes 

No 

(2) If your answer to Question (d)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?
Yes 

No 

(4) Did you appeal from the denial of your motion or petition?
Yes 

No 

(5) If your answer to Question (d)(4) is “Yes,” did you raise this issue in the appeal?
Yes 

No 

(6) If your answer to Question (d)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is “No,” explain why you did not raise this
issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative
remedies, etc.) that you have used to exhaust your state remedies on Ground Three:

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GROUND FOUR:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Four, explain why:

(c) Direct Appeal of Ground Four:
(1) If you appealed from the judgment of conviction, did you raise this issue?
Yes 

No 

(2) If you did not raise this issue in your direct appeal, explain why:
(d) Post-Conviction Proceedings:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a
state trial court?

Yes  No 

(2) If your answer to Question (d)(1) is “Yes,” state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(3) Did you receive a hearing on your motion or petition?
Yes 

No 

(4) Did you appeal from the denial of your motion or petition?
Yes 

No 

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(5) If your answer to Question (d)(4) is “Yes,” did you raise this issue in the appeal?
Yes  No 
(6) If your answer to Question (d)(4) is “Yes,” state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court’s decision:
Result (attach a copy of the court’s opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is “No,” explain why you did not raise this
issue:

(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative
remedies, etc.) that you have used to exhaust your state remedies on Ground Four:

13. Please answer these additional questions about the petition you are filing:
(a) Have all grounds for relief that you have raised in this petition been presented to the highest
state court having jurisdiction?

Yes 

No 

If your answer is “No,” state which grounds have not been so presented and give your
reason(s) for not presenting them:

(b) Is there any ground in this petition that has not been presented in some state or federal
court? If so, which ground or grounds have not been presented, and state your reasons for
not presenting them:

14. Have you previously filed any type of petition, application, or motion in a federal court regarding
the conviction that you challenge in this petition?

Yes 

No 

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If “Yes,” state the name and location of the court, the docket or case number, the type of
proceeding, the issues raised, the date of the court’s decision, and the result for each petition,
application, or motion filed. Attach a copy of any court opinion or order, if available.

15. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either
state or federal, for the judgment you are challenging?

Yes 

No 

If “Yes,” state the name and location of the court, the docket or case number, the type of
proceeding, and the issues raised.

16. Give the name and address, if you know, of each attorney who represented you in the following
stages of the judgment you are challenging:
(a) At preliminary hearing:
(b) At arraignment and plea:
(c) At trial:
(d) At sentencing:
(e) On appeal:
(f) In any post-conviction proceeding:
(g) On appeal from any ruling against you in a post-conviction proceeding:

17. Do you have any future sentence to serve after you complete the sentence for the judgment that
you are challenging?

Yes  No 

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(a) If so, give name and location of court that imposed the other sentence you will serve in the
future:
(b) Give the date the other sentence was imposed:
(c) Give the length of the other sentence:
(d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to
be served in the future?

Yes  No 

18. TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you
must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not
bar your petition.*

* The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) as contained in 28 U.S.C.
§ 2244(d) provides in part that:
(1) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State court. The limitation period shall run
from the latest of —
(continued…)

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Therefore, petitioner asks that the Court grant the following relief:

or any other relief to which petitioner may be entitled.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct
and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on
(month, date, year).

Executed (signed) on

(date).

Signature of Petitioner

*(…continued)
(A) the date on which the judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in
violation of the Constitution or laws of the United States is removed, if the applicant was
prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the
Supreme Court, if the right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been
discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral
review with respect to the pertinent judgment or claim is pending shall not be counted toward
any period of limitation under this subsection.

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If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is
not signing this petition.

IN FORMA PAUPERIS DECLARATION
[Insert appropriate court]
*****