Thiery v. Gilbert

Filing 10

ORDER ADOPTING 9 AMENDED REPORT AND RECOMMENDATION, by Judge Ronald B. Leighton. Petitioner filed a second or successive petition for relief under 28 U.S.C. § 2254 without the Ninth Circuit's permission. Therefore, Petitioner's 28 U.S.C. § 2254 petition [Dkt. #4] is DISMISSED WITHOUT PREJUDICE. (Attachments: # 1 9th CCA Form 12- Application)**9 PAGE(S), PRINT ALL**(Robert Thiery, Prisoner ID: 704828)(GMR)

Form 12.

Application for Leave to File Second or Successive Petition Under
28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255
(New, 7/1/02; Rev. 7/1/16 )
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
P.O. Box 193939
San Francisco, California 94119-3939

Docket Number (to be provided by Court)
Applicant Name
Prisoner Registration Number
Address
Name of Respondent (Warden)

Instructions - Read Carefully
(1) This application, whether handwritten or typewritten, must be legible and signed by the applicant under
penalty of perjury. An original must be provided to the Clerk of the Ninth Circuit. The application must
comply with 9th Circuit Rule 22-3, which is attached to this form.
(2) All questions must be answered concisely. Add separate sheets if necessary.
(3) If this is a capital case, the applicant shall serve a copy of this application and any attachments on
respondent and must complete and file the proof of service that accompanies this form. If this is not a capital
case, service on the respondent is not required.
(4) The proposed 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion that applicant seeks to file in the
district court must be included with this form.
(5) Applicants seeking authorization to file a second or successive section 2254 habeas corpus petition shall
include copies of all relevant state court decisions if reasonably available.

You Must Answer the Following Questions:
(1) What conviction(s) are you challenging?

(2) In what court(s) were you convicted of these crime(s)?

(3) What was the date of each of your conviction(s) and what is the length of each sentence?

For questions (4) through (10), provide information separately for each of your previous
§§ 2254 or 2255 proceedings. Use additional pages if necessary.
(4) Has the judgment of your conviction or sentence been modified or amended? If yes, when and by what
court?

(5) With respect to each conviction and sentence, have you ever filed a petition or motion for habeas corpus
relief in federal court under 28 U.S.C. § 2254 or § 2255?
Yes

No
(a) In which federal district court did you file a petition or motion?

(b) What was the docket number?

(c) On what date did you file the petition/motion?

(6) What grounds were raised in your previous habeas proceeding?
(list all grounds and issues previously raised in that petition/ motion)

(7) Did the district court hold an evidentiary hearing?

Yes

No

(8) How did the district court rule on your petition/motion?
District court dismissed petition/motion? If yes, on what grounds?

District court denied petition/motion;
District court granted relief; if yes, on what claims and what was the relief?

(9) On what date did the district court decide your petition/motion?

(10) Did you file an appeal from that disposition?

Yes

No

(a) What was the docket number of your appeal?

(b) How did the court of appeals decide your appeal?

(11) State concisely each and every ground or issue you wish to raise in your current petition or motion for
habeas relief. Summarize briefly the facts supporting each ground or issue.

(12) For each ground raised, was it raised in the state courts? If so, what did the state courts rule and when?
(Attach a copy of all relevant state court decisions, if available)

(13) For each ground/issue raised, was this claim raised in any prior federal petition/motion?
(list each ground separately)

(14) For each ground/issue raised, does this claim rely on a new rule of constitutional law?
(list each ground separately and give case name and citation for each new rule of law)

(15) For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence
and when did you discover it? Why has this newly discovered evidence not been previously available to you?
(list each ground separately)

(16) For each ground/issue raised, does the newly discovered evidence establish your innocence?
How?

(17) For each ground/issue raised, does the newly discovered evidence establish a federal
constitutional error? Which provision of the Constitution was violated and how?

(18) Provide any other basis for your application not previously stated.

Date:

Signature:

In capital cases only, proof of service on respondent MUST be attached. A sample proof of service is
attached to this form.
Attach proposed section 2254 petition or section 2255 motion to this application.

CERTIFICATE OF SERVICE
APPLICATIONS FOR LEAVE TO FILE
SECOND OR SUCCESSIVE
28 U.S.C. §§ 2254/2255 PETITIONS/MOTIONS
DEATH PENALTY CASES ONLY

Case Name:

v.

I certify that a copy of the application for leave to file a second or successive 28 U.S.C. § 2254 petition or §
2255 motion with any attachments was served, either in person or by mail, on the person listed below.

Signature
Notary NOT required

Name

Address

Date of Service

CIRCUIT RULE 22-3. APPLICATIONS FOR AUTHORIZATION
TO FILE SECOND OR SUCCESSIVE 28 U.S.C. § 2254 PETITION
OR § 2255 MOTION - ALL CASES; STAY OF EXECUTION CAPITAL CASES
(a)

Applications. An applicant seeking authorization to file a second or successive 28 U.S.C.
§ 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in
the Court of Appeals demonstrating entitlement to such leave under sections 2254 or
2255. See Form 12. An original in paper format of the application must be filed with the
Clerk of the Court of Appeals unless the application is submitted via Appellate CM/ECF.
No filing fee is required. If an application for authorization to file a second or successive
section 2254 petition or section 2255 motion is mistakenly submitted to the district court,
the district court shall refer it to the court of appeals. If an unauthorized second or
successive section 2254 petition or section 2255 motion is submitted to the district court,
the district court may, in the interests of justice, refer it to the Court of Appeals. (Rev.
12/1/09; Rev. 7/1/13; Rev. 7/1/16)
The applicant must:
(1)

include Form 12 if submitted by an applicant not represented by counsel;

(2)

include the proposed section 2254 petition or section 2255 motion that the
applicant seeks to file in the district court;

(3)

state as to each claim presented whether it previously has been raised in any state
or federal court and, if so, the name of the court and the date of the order
disposing of such claim(s); and

(4)

state how the requirements of sections 2244(b) or 2255 have been satisfied.

(b)

Attachments. If reasonably available to the applicant, the application must include
copies of all relevant state court orders and decisions. (Rev. 12/1/09; Rev 7/1/16)

(c)

Service.
(1)

(2)
(d)

Capital Cases: In capital cases, the applicant must serve a copy of the
application, attachments, and proposed section 2254 petition/section 2255 motion
on the respondent, and must attach a certificate of service to the application filed
with the Court. (Rev. 7/1/16)
Noncapital Cases: In noncapital cases, service of the application on the
respondent is not required. (New 7/1/16)

Response.
(1)

Capital Cases: In capital cases where an execution date is scheduled and no stay
is in place, respondent shall respond to the application and file supplemental
attachments as soon as practicable. Otherwise, in capital cases, respondent shall

respond and file supplemental attachments within 14 days of the date the
application is served. (Rev. 12/1/09)
(2)

Noncapital Cases: In noncapital cases, no response is required unless ordered by
the Court. Respondent may include supplemental attachments with its response.
(Rev. 7/1/16)

(e)

Decision. The application will be determined by a three-judge panel. In capital cases
where an execution date is scheduled and no stay is in place, the Court will grant or deny
the application, and state its reasons therefore, as soon as practicable.

(f)

Stays of Execution. If an execution date is scheduled and no stay is in place, any judge
may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question
will be presented to the panel as soon as practicable. If the Court grants leave to file a
second or successive application, the Court shall stay the applicant’s execution pending
disposition of the second or successive petition by the district court.

Cross Reference:
•

Circuit Rule 25-5(b)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-3
The district court is required to transfer mistakenly filed applications for authorization to file a
second or successive section 2254 petition or 2255 motion. If an applicant files a document that
appears to be an unauthorized section 2254 petition or 2255 motion and facially alleges a claim
based on a new rule of constitutional law or newly discovered evidence of actual innocence, the
district court may transfer the filing to the court of appeals in the interests of justice or, in the
alternative, the district court may dismiss the filing without prejudice to the applicant seeking
authorization from the court of appeals on Ninth Circuit Form 12.
The rule requires applicants to provide this Court with the proposed petition or motion. Pro se
applicants are encouraged to use the form petition or motion adopted by the district court where
the applicant anticipates filing the document. (New 7/1/16)