Stefano Rocco et al v. Orange County Superior Court
Filing
3
ORDER TO SHOW CAUSE by Magistrate Judge Alicia G. Rosenberg. Response to Order to Show Cause due by 8/26/2013. Petitioner is ordered to show cause on or before August 26, 2013, why the petition should not be summarily dismissed for failure to comply with Rule 2(c) and (d) of the Rules Governing Section 2254 Cases. Petitioner is free to attach any documents he wishes to the petition. If Petitioner does not timely respond to this order to show cause, the petition is subject to summary dismissal. (See Order for details.) (Attachments: # 1 State Habeas Corpus Packet) (mp)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
SOUTHERN DIVISION
312 North Spring Street, Room G-8
Los Angeles, CA 90012
Tel: (213) 894-7984
411 West Fourth Street, Suite 1053
Santa Ana, CA 92701-4516
(714) 338-4750
EASTERN DIVISION
TERRY NAFISI
3470 Twelfth Street, Room 134
Riverside, CA 92501
(951) 328-4450
District Court Executive and
Clerk of Court
Dear Sir/Madam:
The following documents are enclosed:
1. Petition for Writ of Habeas Corpus by a Person in:
G Federal Custody (Form CV-27) (four copies) along with one copy of Title 28 U.S. Code Sections 2241
and 2242
x
G State Custody (Form CV-69) (four copies) along with one copy of Title 28 U.S. Code Sections 2244(d),
2254 and Rules Governing Section 2254 Cases; and Consent to Proceed Before a United States
Magistrate Judge (State Habeas Case) (Form CV-11B) (two copies) along with one copy of Title 28 U.S.
Code Section 636
2. Local Rules 72-3, and 83-16
The judges of this court have adopted for use the enclosed Petition for Writ of Habeas Corpus form. You must
read the instructions carefully, and comply with its requirements and instructions. Once fully completed, return an
original and two copies to this office for filing. You should keep a copy for your records.
The filing fee for a Petition for Habeas Corpus is $5.00, payable to: Clerk, U.S. District Court. The Clerk’s Office
will also accept credit cards (Mastercard, Visa, Diners Club, Discover, American Express) for filing fees and
miscellaneous fees. Credit card payments may be made at all payment windows where receipts are issued.
If you are without funds, execute the Declaration to Proceed in Forma Pauperis contained within the form. In
addition to the declaration, an authorized officer of the institution must complete the Certificate contained in the
Declaration to Proceed in Forma Pauperis as to how much money the institution has on deposit in your account.
CONSENT TO A MAGISTRATE JUDGE (STATE HABEAS CASES ONLY)
In order to encourage the just, speedy, and inexpensive determination of habeas cases filed in this district, the
parties may waive their right to proceed before a district judge and consent to magistrate judge jurisdiction. In
accordance with 28 U.S.C. § 636 (c), upon the consent of all the parties to such jurisdiction, the magistrate judge
assigned to this case will conduct all proceedings, decide all dispositive and non-dispositive matters, and order the entry
of the final judgment. The party who does not prevail may appeal directly to the Ninth Circuit Court of Appeals in the
same manner as an appeal from the final judgment of a district judge.
The judges of this court encourage the parties to consent to magistrate judge jurisdiction as it may result in an
earlier resolution of the matter. However, you are free to withhold consent to magistrate judge jurisdiction. If you do
not consent, the assigned magistrate judge will continue to decide all non-dispositive matters, and will issue a Report
and Recommendation to the district judge as to all dispositive matters.
If you do consent to magistrate judge jurisdiction, you should execute and return the enclosed Consent to
Proceed Before a United States Magistrate Judge (State Habeas Case) form (CV-11B) with your petition.
Sincerely,
Clerk, U. S. District Court
By
Deputy Clerk
CV-76 (03/10)
LETTER ENCLOSING HABEAS CORPUS FORMS
NAME, ADDRESS & TELEPHONE NUMBER OF ATTORNEY(S) FOR, OR, PLAINTIFF OR
DEFENDANT IF PLAINTIFF OR DEFENDANT IS PRO PER
ATTORNEYS FOR:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER
Plaintiff(s),
v.
CONSENT TO PROCEED BEFORE A UNITED STATES
MAGISTRATE JUDGE (STATE HABEAS CASE)
Defendant(s)
I
NOTICE OF A MAGISTRATE JUDGE’S AVAILABILITY
1.
2.
You are free to withhold consent to magistrate judge jurisdiction.
3.
If both parties consent to have a magistrate judge decide the case, either party may appeal directly to the
Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
4.
II
A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case, including
dispositive matters, and entry of final judgment. However, a magistrate judge can be assigned to rule on
dispositive matters only if all parties voluntarily consent.
If both parties do not consent to have a magistrate judge decide the case, the assigned magistrate judge will
continue to decide all non-dispositive matters, and will issue a Report and Recommendation to the district
judge as to all dispositive matters.
CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES
I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.
Name of Counsel OR Party if Pro Per
Signature and date
Counsel for (Name Party)
_______________________________
_______________________________
III
NOTICE TO COUNSEL FROM CLERK
All parties having consented to proceed before the assigned magistrate judge, please specify the case number as
on all documents subsequently filed in this case.
CV-11B (02/08)
CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE (STATE HABEAS CASE)
NAME, ADDRESS & TELEPHONE NUMBER OF ATTORNEY(S) FOR, OR, PLAINTIFF OR
DEFENDANT IF PLAINTIFF OR DEFENDANT IS PRO PER
ATTORNEYS FOR:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER
Plaintiff(s),
v.
CONSENT TO PROCEED BEFORE A UNITED STATES
MAGISTRATE JUDGE (STATE HABEAS CASE)
Defendant(s)
I
NOTICE OF A MAGISTRATE JUDGE’S AVAILABILITY
1.
2.
You are free to withhold consent to magistrate judge jurisdiction.
3.
If both parties consent to have a magistrate judge decide the case, either party may appeal directly to the
Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
4.
II
A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case, including
dispositive matters, and entry of final judgment. However, a magistrate judge can be assigned to rule on
dispositive matters only if all parties voluntarily consent.
If both parties do not consent to have a magistrate judge decide the case, the assigned magistrate judge will
continue to decide all non-dispositive matters, and will issue a Report and Recommendation to the district
judge as to all dispositive matters.
CONSENT TO MAGISTRATE JUDGE FOR ALL PURPOSES
I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.
Name of Counsel OR Party if Pro Per
Signature and date
Counsel for (Name Party)
_______________________________
_______________________________
III
NOTICE TO COUNSEL FROM CLERK
All parties having consented to proceed before the assigned magistrate judge, please specify the case number as
on all documents subsequently filed in this case.
CV-11B (02/08)
CONSENT TO PROCEED BEFORE A UNITED STATES MAGISTRATE JUDGE (STATE HABEAS CASE)
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
TITLE 28 UNITED STATES CODE
§ 636. JURISDICTION, POWERS, AND TEMPORARY ASSIGNMENT
(a) Each United States magistrate judge serving under this chapter shall have within the district in
which sessions are held by the court that appointed the magistrate judge, at other places where
that court may function, and elsewhere as authorized by law-(1) all powers and duties conferred or imposed upon United States commissioners by law or by
the Rules of Criminal Procedure for the United States District Courts;
(2) the power to administer oaths and affirmations, issue orders pursuant to section 3142 of title
18 concerning release or detention of persons pending trial, and take acknowledgements,
affidavits, and depositions;
(3) the power to conduct trials under section 3401, title 18, United States Code, in conformity
with and subject to the limitations of that section;
(4) the power to enter a sentence for a petty offense; and
(5) the power to enter a sentence for a class A misdemeanor in a case in which the parties have
consented.
(b)(1) Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial matter pending
before the court, except a motion for injunctive relief, for judgment on the pleadings, for
summary judgment, to dismiss or quash an indictment or information made by the defendant, to
suppress evidence in a criminal case, to dismiss or to permit maintenance of a class action, to
dismiss for failure to state a claim upon which relief can be granted, and to involuntarily dismiss
an action. A judge of the court may reconsider any pretrial matter under this subparagraph (A)
where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including evidentiary
hearings, and to submit to a judge of the court proposed findings of fact and recommendations
for the disposition, by a judge of the court, of any motion excepted in subparagraph (A), of
applications for posttrial [FN1] relief made by individuals convicted of criminal offenses and of
prisoner petitions challenging conditions of confinement.
(C) the magistrate judge shall file his proposed findings and recommendations under
subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
Within ten days after being served with a copy, any party may serve and file written objections to
such proposed findings and recommendations as provided by rules of court. A judge of the court
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 1 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made. A judge of the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge. The
judge may also receive further evidence or recommit the matter to the magistrate judge with
instructions.
(2) A judge may designate a magistrate judge to serve as a special master pursuant to the
applicable provisions of this title and the Federal Rules of Civil Procedure for the United States
district courts. A judge may designate a magistrate judge to serve as a special master in any civil
case, upon consent of the parties, without regard to the provisions of rule 53(b) of the Federal
Rules of Civil Procedure for the United States district courts.
(3) A magistrate judge may be assigned such additional duties as are not inconsistent with the
Constitution and laws of the United States.
(4) Each district court shall establish rules pursuant to which the magistrate judges shall discharge
their duties.
(c) Notwithstanding any provision of law to the contrary-(1) Upon the consent of the parties, a full-time United States magistrate judge or a part-time
United States magistrate judge who serves as a full-time judicial officer may conduct any or all
proceedings in a jury or nonjury civil matter and order the entry of judgment in the case, when
specially designated to exercise such jurisdiction by the district court or courts he serves. Upon
the consent of the parties, pursuant to their specific written request, any other part-time
magistrate judge may exercise such jurisdiction, if such magistrate judge meets the bar
membership requirements set forth in section 631(b)(1) and the chief judge of the district court
certifies that a full-time magistrate judge is not reasonably available in accordance with guidelines
established by the judicial council of the circuit. When there is more than one judge of a district
court, designation under this paragraph shall be by the concurrence of a majority of all the judges
of such district court, and when there is no such concurrence, then by the chief judge.
(2) If a magistrate judge is designated to exercise civil jurisdiction under paragraph (1) of this
subsection, the clerk of court shall, at the time the action is filed, notify the parties of the
availability of a magistrate judge to exercise such jurisdiction. The decision of the parties shall be
communicated to the clerk of court. Thereafter, either the district court judge or the magistrate
judge may again advise the parties of the availability of the magistrate judge, but in so doing, shall
also advise the parties that they are free to withhold consent without adverse substantive
consequences. Rules of court for the reference of civil matters to magistrate judges shall include
procedures to protect the voluntariness of the parties' consent.
(3) Upon entry of judgment in any case referred under paragraph (1) of this subsection, an
aggrieved party may appeal directly to the appropriate United States court of appeals from the
judgment of the magistrate judge in the same manner as an appeal from any other judgment of a
district court. The consent of the parties allows a magistrate judge designated to exercise civil
jurisdiction under paragraph (1) of this subsection to direct the entry of a judgment of the district
court in accordance with the Federal Rules of Civil Procedure. Nothing in this paragraph shall be
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 2 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
construed as a limitation of any party's right to seek review by the Supreme Court of the United
States.
(4) The court may, for good cause shown on its own motion, or under extraordinary
circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under
this subsection.
(5) The magistrate judge shall, subject to guidelines of the Judicial Conference, determine whether
the record taken pursuant to this section shall be taken by electronic sound recording, by a court
reporter, or by other means.
(d) The practice and procedure for the trial of cases before officers serving under this chapter
shall conform to rules promulgated by the Supreme Court pursuant to section 2072 of this title.
(e) Contempt authority.-(1) In general. --A United States magistrate judge serving under this chapter shall have within the
territorial jurisdiction prescribed by the appointment of such magistrate judge the power to
exercise contempt authority as set forth in this subsection.
(2) Summary criminal contempt authority. --A magistrate judge shall have the power to punish
summarily by fine or imprisonment, or both, such contempt of the authority of such magistrate
judge constituting misbehavior of any person in the magistrate judge's presence so as to obstruct
the administration of justice. The order of contempt shall be issued under the Federal Rules of
Criminal Procedure.
(3) Additional criminal contempt authority in civil consent and misdemeanor cases. --In any
case in which a United States magistrate judge presides with the consent of the parties under
subsection (c) of this section, and in any misdemeanor case proceeding before a magistrate judge
under section 3401 of title 18, the magistrate judge shall have the power to punish, by fine or
imprisonment, or both, criminal contempt constituting disobedience or resistance to the
magistrate judge's lawful writ, process, order, rule, decree, or command. Disposition of such
contempt shall be conducted upon notice and hearing under the Federal Rules of Criminal
Procedure.
(4) Civil contempt authority in civil consent and misdemeanor cases. --In any case in which a
United States magistrate judge presides with the consent of the parties under subsection (c) of this
section, and in any misdemeanor case proceeding before a magistrate judge under section 3401 of
title 18, the magistrate judge may exercise the civil contempt authority of the district court. This
paragraph shall not be construed to limit the authority of a magistrate judge to order sanctions
under any other statute, the Federal Rules of Civil Procedure, or the Federal Rules of Criminal
Procedure.
(5) Criminal contempt penalties. --The sentence imposed by a magistrate judge for any criminal
contempt provided for in paragraphs (2) and (3) shall not exceed the penalties for a Class C
misdemeanor as set forth in sections 3581(b)(8) and 3571(b)(6) of title 18.
(6) Certification of other contempts to the district court.--Upon the commission of any such
act–
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 3 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
(A) in any case in which a United States magistrate judge presides with the consent of the parties
under subsection (c) of this section, or in any misdemeanor case proceeding before a magistrate
judge under section 3401 of title 18, that may, in the opinion of the magistrate judge, constitute a
serious criminal contempt punishable by penalties exceeding those set forth in paragraph (5) of
this subsection, or
(B) in any other case or proceeding under subsection (a) or (b) of this section, or any other
statute, where-(i) the act committed in the magistrate judge's presence may, in the opinion of the magistrate
judge, constitute a serious criminal contempt punishable by penalties exceeding those set forth in
paragraph (5) of this subsection,
(ii) or the act that constitutes a criminal contempt occurs outside the presence of the magistrate
judge,
(iii) the act constitutes a civil contempt,
the magistrate judge shall forthwith certify the facts to a district judge and may serve or cause to
be served, upon any person whose behavior is brought into question under this paragraph, an
order requiring such person to appear before a district judge upon a day certain to show cause
why that person should not be adjudged in contempt by reason of the facts so certified. The
district judge shall thereupon hear the evidence as to the act or conduct complained of and, if it is
such as to warrant punishment, punish such person in the same manner and to the same extent as
for a contempt committed before a district judge.
(7) Appeals of magistrate judge contempt orders.--The appeal of an order of contempt under
this subsection shall be made to the court of appeals in cases proceeding under subsection (c) of
this section. The appeal of any other order of contempt issued under this section shall be made to
the district court.
(f) In an emergency and upon the concurrence of the chief judges of the districts involved, a
United States magistrate judge may be temporarily assigned to perform any of the duties specified
in subsection (a), (b), or (c) of this section in a judicial district other than the judicial district for
which he has been appointed. No magistrate judge shall perform any of such duties in a district to
which he has been temporarily assigned until an order has been issued by the chief judge of such
district specifying
(1) the emergency by reason of which he has been transferred,
(2) the duration of his assignment, and
(3) the duties which he is authorized to perform. A magistrate judge so assigned shall not be
entitled to additional compensation but shall be reimbursed for actual and necessary expenses
incurred in the performance of his duties in accordance with section 635.
(g) A United States magistrate judge may perform the verification function required by section
4107 of title 18, United States Code. A magistrate judge may be assigned by a judge of any United
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 4 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
States district court to perform the verification required by section 4108 and the appointment of
counsel authorized by section 4109 of title 18, United States Code, and may perform such
functions beyond the territorial limits of the United States. A magistrate judge assigned such
functions shall have no authority to perform any other function within the territory of a foreign
country.
(h) A United States magistrate judge who has retired may, upon the consent of the chief judge of
the district involved, be recalled to serve as a magistrate judge in any judicial district by the
judicial council of the circuit within which such district is located. Upon recall, a magistrate judge
may receive a salary for such service in accordance with regulations promulgated by the Judicial
Conference, subject to the restrictions on the payment of an annuity set forth in section 377 of
this title or in subchapter III of chapter 83, and chapter 84, of title 5 which are applicable to such
magistrate judge. The requirements set forth in subsections (a), (b)(3), and (d) of section 631, and
paragraph (1) of subsection (b) of such section to the extent such paragraph requires membership
of the bar of the location in which an individual is to serve as a magistrate judge, shall not apply to
the recall of a retired magistrate judge under this subsection or section 375 of this title. Any other
requirement set forth in section 631(b) shall apply to the recall of a retired magistrate judge under
this subsection or section 375 of this title unless such retired magistrate judge met such
requirement upon appointment or reappointment as a magistrate judge under section 361.
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 5 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
§ 2244. FINALITY OF DETERMINATION
(d)(1) A 1-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-(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.
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 6 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
§ 2254. STATE CUSTODY; REMEDIES IN FEDERAL COURTS
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody pursuant to the
judgment of a State court only on the ground that he is in custody in violation of the Constitution
or laws or treaties of the United States.
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted unless it appears that-(A) the applicant has exhausted the remedies available in the courts of the
State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of
the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.
(3) A State shall not be deemed to have waived the exhaustion requirement or be estopped
from reliance upon the requirement unless the State, through counsel, expressly waives the
requirement.
(c) An applicant shall not be deemed to have exhausted the remedies available in the
courts of the State, within the meaning of this section, if he has the right under the law of the State
to raise, by any available procedure, the question presented.
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to
the judgment of a State court shall not be granted with respect to any claim that was adjudicated
on the merits in State court proceedings unless the adjudication of the claim-(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person
in custody pursuant to the judgment of a State court, a determination of a factual issue made by a
State court shall be presumed to be correct. The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 7 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant
shows that-(A) the claim relies on-(i) a new rule of constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously unavailable; or
(ii) a factual predicate that could not have been previously discovered through
the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and
convincing evidence that but for constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
(f) If the applicant challenges the sufficiency of the evidence adduced in such State court
proceeding to support the State court's determination of a factual issue made therein, the
applicant, if able, shall produce that part of the record pertinent to a determination of the
sufficiency of the evidence to support such determination. If the applicant, because of indigency
or other reason is unable to produce such part of the record, then the State shall produce such
part of the record and the Federal court shall direct the State to do so by order directed to an
appropriate State official. If the State cannot provide such pertinent part of the record, then the
court shall determine under the existing facts and circumstances what weight shall be given to the
State court's factual determination.
(g) A copy of the official records of the State court, duly certified by the clerk of such court
to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia
showing such a factual determination by the State court shall be admissible in the Federal court
proceeding.
(h) Except as provided in section 408 of the Controlled Substances Act, in all proceedings
brought under this section, and any subsequent proceedings on review, the court may appoint
counsel for an applicant who is or becomes financially unable to afford counsel, except as
provided by a rule promulgated by the Supreme Court pursuant to statutory authority.
Appointment of counsel under this section shall be governed by section 3006A of title 18.
(i) The ineffectiveness or incompetence of counsel during Federal or State collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under section 2254.
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 8 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
RULES GOVERNING SECTION 2254 CASES IN THE UNITED STATES DISTRICT
COURTS
Rule 1. Scope
(a) Cases Invo lving a Petition under 28 U.S.C. § 2254. These rules govern a petition
for a writ of habeas corpus filed in a United States district court under 28 U.S.C § 2254 by:
(1) by a person in custody under a state-court judgment who seeks a
determination that the custody violates the Constitution, laws, or treaties of the United States;
a
and
(2) a person in custody under a state-court or federal-court judgment who seeks a
n
determination that future custody under a state-court judgment would violate the Constitution,
d
laws, or treaties of the United States.
(b)
Other Cases . The district court may apply any or all of these rules to a habeas
corpus petition not covered by Rule 1(a).
Rule 2. The Petition
(a) Current Custody; Naming the Respondent . If the petitioner is currently in custody
under a state-court judgment, the petition must name as respondent the state officer who has
custody.
(b) Future Custody; Naming the Respondents and Specifying the Judgment. . If the
petitioner is not yet in custody — but may be subject to future custody — under the state-court
judgment being contested, the petition must name as respondents both the officer who has
current custody and the attorney general of the state where the judgment was entered. The
petition must ask for relief from the state-court judgment being contested.
(c) Form. The petition must:
(1) specify all the grounds for relief available to the petitioner;
(2) state the facts supporting each ground;
(3) state the relief requested;
(4) be printed, typewritten, or legibly handwritten; and,
(5) be signed under penalty of perjury by the petitioner or by a person authorized
to sign it for the petitioner under 28 U.S.C. § 2242.
(d) Standard Form. The petition must substantially follow either the form appended to
these rules or a form prescribed by a local district-court rule. The clerk must make forms
available to petitioners without charge.
(e)
Separate Petitions for Judgments of Separate Courts. A petitioner who seeks
relief from judgments of more than one state court must file a separate petition covering the
judgment or judgments of each court.
Rule 3. Filing the Petition; Inmate Filing
(a)
Where to File: Copies; Filing Fee. An original and two copies of the petition
must be filed with the clerk and must be accompanied by:
(1) the applicable filing fee, or
(2) a motion for leave to proceed in forma pauperis, the affidavit required by 28
U.S.C. § 1915, and a certificate from the warden or other appropriate officer of the place of
confinement showing the amount of money or securities that the petitioner has in any account in
the institution.
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 9 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
(b) Filing. The clerk must file the petition and enter it on the docket.
(c) Time to File. The time for filing a petition is governed by 28 U.S.C. § 2244(d).
(d) Inmate Filing. A paper filed by an inmate confined in an institution is timely if
deposited in the institution’s internal mailing system on or before the last day of filing. If an
institution has a system designed for legal mail, the inmate must use that system to receive the
benefit of this rule. Timely filing may be shown by a declaration in compliance with 28 U.S.C. §
1746 or by a notarized statement, either of which must set forth the date of deposit and state that
first-class postage has been prepaid.
Rule 4. Preliminary Review; Serving the Petition and Order
The clerk must promptly forward the petition to a judge under the court’s assignment
procedure, and the judge must promptly examine it. If it plainly appears from the petition and
any attached exhibits that the petitioner is not entitled to relief in the district court, the judge
must dismiss the petition and direct the clerk to notify the petitioner. If the petition is not
dismissed, the judge must order the respondent to file an answer, motion, or other response
within a fixed time, or to take other action the judge may order. In every case, the clerk must
serve a copy of the petition and any order on the respondent and on the attorney general or
other appropriate officer of the state involved.
Rule 5. The Answer and the Reply
(a) When Required. The respondent is not required to answer the petition unless a judge
so orders.
(b) Contents: Addressing the Allegations; Stating a Bar. The answer must address the
allegations in the petition. In addition, it must state whether any claim in the petition is barred
by a failure to exhaust state remedies, a procedural bar, non-retroactivity, or a statute of
limitations.
(c) Contents: Transcripts. The answer must also indicate what transcripts (of pretrial,
trial, sentencing , or post-conviction proceedings) are available, when they can be furnished, and
what proceedings have been recorded but not transcribed. The respondent must attach to the
answer parts of the transcript that the respondent considers relevant. The judge may order that
the respondent furnish other parts of existing transcripts or that parts of untranscribed recordings
be transcribed and furnished. If a transcript cannot be obtained, the respondent may submit a
narrative summary of the evidence.
(d) Contents: Briefs on Appeal and Opinions. The respondent must also file with the
answer a copy of:
(1) any brief that the petitioner submitted in an appellate court contesting the
conviction or sentence, or contesting an adverse judgment or order in a post-conviction
proceeding;
(2) any brief that the prosecution submitted in an appellate court relating to the
conviction or sentence; and
(3) the opinions and dispositive orders of the appellate court relating to the
conviction or the sentence.
(e) Reply. The petitioner may submit a reply to the respondent’s answer or other
pleading within a time fixed by the judge.
Rule 6. Discovery
(a)
Leave of Court Required. A judge may, for good cause, authorize a party to
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 10 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
conduct discovery under the Federal Rules of Civil Procedure and may limit the extent of
discovery. If necessary for effective discovery, the judge must appoint an attorney for a
petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.
(b)
Requesting Discovery. A party requesting discovery must provide reasons for the
request. The request must also include any proposed interrogatories and requests for admission,
and must specify any requested documents.
(c)
Deposition Expenses. If the respondent is granted leave to take the deposition,
the judge may require the respondent to pay the travel expenses, subsistence expenses, and fees
of the petitioner’s attorney to attend the deposition.
Rule 7. Expansion of Record
(a)
In General. . If the petition is not dismissed, the judge may direct the parties to
expand the record by submitting additional materials relating to the petition. The judge may
require that these materials be authenticated.
(b)
Types of Materials. The materials that may be required include letters predating
the filing of the petition, documents, exhibits, and answers under oath to written interrogatories
propounded by the judge. Affidavits may also be submitted and considered as part of the record.
(c) Review by the Opposing Party. The judge must give the party against whom the
additional materials are offered an opportunity to admit or deny their correctness.
Rule 8. Evidentiary Hearing
(a) Determining Whether to Hold a Hearing . If the petition is not dismissed, the judge
must review the answer, any transcripts and records of state-court proceedings, and any materials
submitted under Rule 7 to determine whether an evidentiary hearing is warranted.
(b)
Reference to a Magistrate Judge. A judge may, under 28 U.S.C. § 636(b), refer
the petition to a magistrate judge to conduct hearings and to file proposed findings of fact and
recommendations for disposition. When they are filed, the clerk must promptly serve copies of
the proposed findings and recommendations on all parties. Within 14 days after being served, a
party may file objections as provided by local court rule. The judge must determine de novo any
proposed finding or recommendation to which objection is made. The judge may accept, reject,
or modify any proposed finding or recommendation.
(c)
Appointing Counsel; Time of Hearing. If an evidentiary hearing is warranted,
the judge must appoint an attorney to represent a petitioner who qualifies to have counsel
appointed under 18 U.S.C. § 3006A. The judge must conduct the hearing as soon as practicable
after giving the attorneys adequate time to investigate and prepare. These rules do not limit the
appointment of counsel under § 3006A at any stage of the proceeding.
Rule 9. Second or Successive Petitions
Before presenting a second or successive petition, the petitioner must obtain an order from the
appropriate court of appeals authorizing the district court to consider the petition as required
by 28 U.S.C. § 2244(b)(3) and (4).
Rule 10. Powers of a Magistrate Judge
A magistrate judge may perform the duties of a district judge under these rules, as
authorized under 28 U.S.C. § 636.
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 11 of 12
UNITED STATES CODE SECTIONS
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Rule 11. Certificate of Appealability; Time to Appeal
(a)
Certificate of Appealability. The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant. Before entering the final
order, the court may direct the parties to submit arguments on whether a certificate should issue.
If the court issues a certificate, the court must state the specific issue or issues that satisfy the
showing required by 28 U.S.C. § 2253(c)(2) . If the court denies a certificate, the parties may not
appeal the denial but may seek a certificate from the court of appeals under Federal Rule of
Appellate Procedure 22. A motion to reconsider a denial does not extend the time to appeal.
(b)
Time to Appeal. Federal Rule of Appellate Procedure 4(a) governs the time to
appeal an order entered under these rules. A timely notice of appeal must be filed even if the
district court issues a certificate of appealability.
Rule 12. Applicability of the Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with any
statutory provisions or these rules, may be applied to a proceeding under these rules.
TITLE 28 § 636, § 2244(d) & 2254
RULES GOVERNING SECTION 2254 CASES
UNITED STATES CODE SECTIONS
PAGE 12 of 12
LOCAL RULES
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LOCAL RULE 83-16 HABEAS CORPUS PETITIONS AND MOTIONS UNDER 28 U.S.C.
SECTION 2255
83-16.1 COURT FORMS - A petition for a writ of habeas corpus or a motion filed
pursuant to 28 U.S.C. Section 2255 shall be submitted on the forms approved and supplied by the
Court.
83-16.2 VERIFICATION - OTHER THAN PERSON IN CUSTODY - If the petition or
motion is verified by a person other than the individual in custody, the person verifying the
document shall set forth the reason why it has not been verified by the person in custody. The
person verifying the document shall allege only facts personally known to that person. If facts are
alleged upon information and belief, the source of the information and belief shall be stated.
83-16.3 HABEAS CORPUS - EXCLUSION, DEPORTATION AND REMOVAL CASES A next friend petition for a writ of habeas corpus in exclusion, deportation and removal cases
must allege that the petitioner has been authorized by the applicant for admission or respondent
in the proceedings to file the petition. If the petition is filed by a relative who is the father,
mother, husband, wife, brother, sister, uncle or aunt of the applicant for admission in the
proceedings, that fact shall be alleged and authorization to file the petition need not be shown.
LR 83-16 Revision 11/2006
LOCAL CIVIL RULE 83-16
LOCAL RULES
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
LOCAL RULE 72-3 DISPOSITIVE MOTIONS AND PRISONER PETITIONS
72-3.1 DUTIES OF MAGISTRATE JUDGE - Upon the assignment of a case
covered by F.R.Civ.P. 72, the Magistrate Judge shall conduct all necessary proceedings. Pursuant
to Rule 10 of the Rules Governing Section 2254 Cases in the United States District Courts, the
duties imposed upon a Judge of the District Court may be performed by a full-time Magistrate
Judge (except in death penalty cases).
72-3.2 SUMMARY DISMISSAL OF HABEAS CORPUS PETITION - The
Magistrate Judge promptly shall examine a petition for writ of habeas corpus, and if it plainly
appears from the face of the petition and any exhibits annexed to it that the petitioner is not
entitled to relief, the Magistrate Judge may prepare a proposed order for summary dismissal and
submit it and a proposed judgment to the District Judge.
72-3.3 REPORT BY MAGISTRATE JUDGE - In habeas cases that are not
summarily dismissed, and in all other matters covered by F.R.Civ.P. 72(b) that the Magistrate
Judge determines can be resolved without trial, the Magistrate Judge shall file a report which
may contain proposed findings of fact, conclusions of law and recommendations for disposition.
If the Magistrate Judge concludes that a trial by a District Judge is required, the Magistrate Judge
shall so report to the District Judge.
72-3.4 OBJECTIONS TO REPORT WHERE PARTY IN CUSTODY - If a party
is in custody at the time of the filing of the Magistrate Judge’s report, the time for filing
objections allowed under F.R.Civ.P. 72(b) shall be twenty (20) days or such further time as the
Magistrate Judge may order.
72-3.5 DETERMINATION OF OBJECTIONS BY DISTRICT JUDGE - If no
objections are filed within the time allowed, the Magistrate Judge shall submit the matter to the
District Judge on the basis of the original report. If objections are timely filed, the Magistrate
Judge may issue a revised or supplemental report or submit the matter to the District Judge on
the basis of the original report.
72-3.6 FILING OF TRANSCRIPT - If an evidentiary hearing was conducted by
the Magistrate Judge, the party objecting shall obtain and file a certified transcript of the hearing
or pertinent part thereof. Upon application, the Magistrate Judge may extend the time to file the
transcript.
LR 72-3 Revision 12/01/2003
LOCAL CIVIL RULE 72-3
NAME
PRISON IDENTIFICATION/BOOKING NO.
ADDRESS OR PLACE OF CONFINEMENT
Note:
It is your responsibility to notify the Clerk of Court in writing of any
change of address. If represented by an attorney, provide his name,
address, telephone and facsimile numbers, and e-mail address.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER:
CV
To be supplied by the Clerk of the United States District Court
FULL NAME (Include name under which you were convicted )
Petitioner,
v.
G __________________ AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
28 U.S.C. § 2254
NAME OF WARDEN, SUPERINTENDENT, JAILOR OR AUTHORIZED
PERSON HAVING CUSTODY OF PETITIONER
Respondent.
PLACE/COUNTY OF CONVICTION
PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT
(List by case number )
CV
CV
INSTRUCTIONS - PLEASE READ CAREFULLY
1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California
state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief
from the conviction and/or the sentence. This form is your petition for relief.
2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge the judgment
entered by a difference California state court, you must file a separate petition.
3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of
a material fact, you may be prosecuted for perjury.
4. Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts
in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to
submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
the grounds for relief from the conviction and/or sentence that you challenge.
5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. And you
must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting
additional grounds at a later date.
6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed
in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you
must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to
your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.
7. When you have completed the form, send the original and two copies to the following address:
Clerk of the United States District Court for the Central District of California
United States Courthouse
ATTN: Intake/Docket Section
312 North Spring Street
Los Angeles, California 90012
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 1 of 11
PLEASE COMPLETE THE FOLLOWING: (Check appropriate number)
This petition concerns:
1.
a conviction and/or sentence.
2.
prison discipline.
3.
a parole problem.
4.
other.
PETITION
1. Venue
a. Place of detention
b. Place of conviction and sentence
2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
a. Nature of offenses involved (include all counts) :
b. Penal or other code section or sections:
c. Case number:
d. Date of conviction:
e. Date of sentence:
f.
Length of sentence on each count:
g. Plea (check one) :
Not guilty
Guilty
Nolo contendere
h. Kind of trial (check one) :
Jury
Judge only
3. Did you appeal to the California Court of Appeal from the judgment of conviction?
Yes
No
If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 2 of 11
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
4. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal
decision?
Yes
No
If so give the following information
(and attach copies of the Petition for Review and the Supreme Court ruling if available) :
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
5. If you did not appeal:
a. State your reasons
b. Did you seek permission to file a late appeal?
Yes
No
6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction?
G Yes
G No
If so, give the following information for each such petition (use additional pages if necessary, and attach copies of the petitions and the
rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed
CV-69 (05/12)
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 3 of 11
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing) :
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
c. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 4 of 11
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
7.
Yes
No
Did you file a petition for certiorari in the United States Supreme Court?
Yes
No
If yes, answer the following:
(1) Docket or case number (if you know):
(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
8. 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 five grounds. Summarize
briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you
must state facts specifically setting forth what your attorney did or failed to do.
CAUTION:
Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust
your state court remedies with respect to each ground on which you are requesting relief from the
federal court. This means that, prior to seeking relief from the federal court, you first must
present all of your grounds to the California Supreme Court.
a. Ground one:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
b. Ground two:
(1) Supporting FACTS:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 5 of 11
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
Yes
No
c. Ground three:
(1) Supporting FACTS:
d. Ground four:
(1) Supporting FACTS:
e. Ground five:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 6 of 11
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
9. If any of the grounds listed in paragraph 7 were not previously presented to the California Supreme Court, state
briefly which grounds were not presented, and give your reasons:
10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction?
Yes
No
If so, give the following information for each such petition
(use additional pages if necessary, and attach copies of the petitions and
the rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 7 of 11
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to
this judgment of conviction?
Yes
No
If so, give the following information (and attach a copy of the petition if available):
(1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
12. Are you presently represented by counsel?
Yes
No
If so, provide name, address and telephone number:
WHEREFORE, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding,
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 8 of 11
Petitioner
Respondent(s)
ELECTION REGARDING
CONSENT TO PROCEED BEFORE
A UNITED STATES MAGISTRATE JUDGE
•
A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case,
including dispositive matters, and entry of final judgment. However, a magistrate judge may be assigned
to rule on dispositive matters only if all parties voluntarily consent.
•
Parties are free to withhold consent to magistrate judge jurisdiction without adverse substantive
consequences.
•
If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to
the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
•
Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge
will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to
the district judge as to all dispositive matters.
Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge,
and sign below.
Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.
No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner/Counsel for Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 9 of 11
Petitioner
DECLARATION IN SUPPORT
OF REQUEST
TO PROCEED
IN FORMA PAUPERIS
Respondent(s)
I,
, declare that I am the petitioner in the above entitled case;
that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am
entitled to relief.
1. Are you presently employed?
Yes
No
a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your
employer.
b. If the answer is no, state the date of last employment and the amount of the salary and wages per month which
you received.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment?
Yes
No
b. Rent payments, interest or dividends?
Yes
No
c. Pensions, annuities or life insurance payments?
Yes
No
d. Gifts or inheritances?
Yes
No
e. Any other sources?
Yes
No
If the answer to any of the above is yes, describe each source of money and state the amount received from each
during the past twelve months:
3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts)
Yes
CV-69 (05/12)
No
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 10 of 11
If the answer is yes, state the total value of the items owned:
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary
household furnishings and clothing)
Yes
No
If the answer is yes, describe the property and state its approximate value:
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how
much you contribute toward their support:
I, declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
Signature of Petitioner
CERTIFICATE
I hereby certify that the Petitioner herein has the sum of $
on account to his credit
institution where he is
at the
confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said
institution:
Date
CV-69 (05/12)
Authorized Officer of Institution/Title of Officer
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 11 of 11
NAME
PRISON IDENTIFICATION/BOOKING NO.
ADDRESS OR PLACE OF CONFINEMENT
Note:
It is your responsibility to notify the Clerk of Court in writing of any
change of address. If represented by an attorney, provide his name,
address, telephone and facsimile numbers, and e-mail address.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER:
CV
To be supplied by the Clerk of the United States District Court
FULL NAME (Include name under which you were convicted )
Petitioner,
v.
G __________________ AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
28 U.S.C. § 2254
NAME OF WARDEN, SUPERINTENDENT, JAILOR OR AUTHORIZED
PERSON HAVING CUSTODY OF PETITIONER
Respondent.
PLACE/COUNTY OF CONVICTION
PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT
(List by case number )
CV
CV
INSTRUCTIONS - PLEASE READ CAREFULLY
1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California
state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief
from the conviction and/or the sentence. This form is your petition for relief.
2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge the judgment
entered by a difference California state court, you must file a separate petition.
3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of
a material fact, you may be prosecuted for perjury.
4. Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts
in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to
submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
the grounds for relief from the conviction and/or sentence that you challenge.
5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. And you
must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting
additional grounds at a later date.
6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed
in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you
must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to
your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.
7. When you have completed the form, send the original and two copies to the following address:
Clerk of the United States District Court for the Central District of California
United States Courthouse
ATTN: Intake/Docket Section
312 North Spring Street
Los Angeles, California 90012
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 1 of 11
PLEASE COMPLETE THE FOLLOWING: (Check appropriate number)
This petition concerns:
1.
a conviction and/or sentence.
2.
prison discipline.
3.
a parole problem.
4.
other.
PETITION
1. Venue
a. Place of detention
b. Place of conviction and sentence
2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
a. Nature of offenses involved (include all counts) :
b. Penal or other code section or sections:
c. Case number:
d. Date of conviction:
e. Date of sentence:
f.
Length of sentence on each count:
g. Plea (check one) :
Not guilty
Guilty
Nolo contendere
h. Kind of trial (check one) :
Jury
Judge only
3. Did you appeal to the California Court of Appeal from the judgment of conviction?
Yes
No
If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 2 of 11
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
4. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal
decision?
Yes
No
If so give the following information
(and attach copies of the Petition for Review and the Supreme Court ruling if available) :
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
5. If you did not appeal:
a. State your reasons
b. Did you seek permission to file a late appeal?
Yes
No
6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction?
G Yes
G No
If so, give the following information for each such petition (use additional pages if necessary, and attach copies of the petitions and the
rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed
CV-69 (05/12)
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 3 of 11
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing) :
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
c. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 4 of 11
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
7.
Yes
No
Did you file a petition for certiorari in the United States Supreme Court?
Yes
No
If yes, answer the following:
(1) Docket or case number (if you know):
(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
8. 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 five grounds. Summarize
briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you
must state facts specifically setting forth what your attorney did or failed to do.
CAUTION:
Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust
your state court remedies with respect to each ground on which you are requesting relief from the
federal court. This means that, prior to seeking relief from the federal court, you first must
present all of your grounds to the California Supreme Court.
a. Ground one:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
b. Ground two:
(1) Supporting FACTS:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 5 of 11
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
Yes
No
c. Ground three:
(1) Supporting FACTS:
d. Ground four:
(1) Supporting FACTS:
e. Ground five:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 6 of 11
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
9. If any of the grounds listed in paragraph 7 were not previously presented to the California Supreme Court, state
briefly which grounds were not presented, and give your reasons:
10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction?
Yes
No
If so, give the following information for each such petition
(use additional pages if necessary, and attach copies of the petitions and
the rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 7 of 11
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to
this judgment of conviction?
Yes
No
If so, give the following information (and attach a copy of the petition if available):
(1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
12. Are you presently represented by counsel?
Yes
No
If so, provide name, address and telephone number:
WHEREFORE, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding,
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 8 of 11
Petitioner
Respondent(s)
ELECTION REGARDING
CONSENT TO PROCEED BEFORE
A UNITED STATES MAGISTRATE JUDGE
•
A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case,
including dispositive matters, and entry of final judgment. However, a magistrate judge may be assigned
to rule on dispositive matters only if all parties voluntarily consent.
•
Parties are free to withhold consent to magistrate judge jurisdiction without adverse substantive
consequences.
•
If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to
the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
•
Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge
will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to
the district judge as to all dispositive matters.
Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge,
and sign below.
Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.
No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner/Counsel for Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 9 of 11
Petitioner
DECLARATION IN SUPPORT
OF REQUEST
TO PROCEED
IN FORMA PAUPERIS
Respondent(s)
I,
, declare that I am the petitioner in the above entitled case;
that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am
entitled to relief.
1. Are you presently employed?
Yes
No
a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your
employer.
b. If the answer is no, state the date of last employment and the amount of the salary and wages per month which
you received.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment?
Yes
No
b. Rent payments, interest or dividends?
Yes
No
c. Pensions, annuities or life insurance payments?
Yes
No
d. Gifts or inheritances?
Yes
No
e. Any other sources?
Yes
No
If the answer to any of the above is yes, describe each source of money and state the amount received from each
during the past twelve months:
3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts)
Yes
CV-69 (05/12)
No
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 10 of 11
If the answer is yes, state the total value of the items owned:
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary
household furnishings and clothing)
Yes
No
If the answer is yes, describe the property and state its approximate value:
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how
much you contribute toward their support:
I, declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
Signature of Petitioner
CERTIFICATE
I hereby certify that the Petitioner herein has the sum of $
on account to his credit
institution where he is
at the
confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said
institution:
Date
CV-69 (05/12)
Authorized Officer of Institution/Title of Officer
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 11 of 11
NAME
PRISON IDENTIFICATION/BOOKING NO.
ADDRESS OR PLACE OF CONFINEMENT
Note:
It is your responsibility to notify the Clerk of Court in writing of any
change of address. If represented by an attorney, provide his name,
address, telephone and facsimile numbers, and e-mail address.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER:
CV
To be supplied by the Clerk of the United States District Court
FULL NAME (Include name under which you were convicted )
Petitioner,
v.
G __________________ AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
28 U.S.C. § 2254
NAME OF WARDEN, SUPERINTENDENT, JAILOR OR AUTHORIZED
PERSON HAVING CUSTODY OF PETITIONER
Respondent.
PLACE/COUNTY OF CONVICTION
PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT
(List by case number )
CV
CV
INSTRUCTIONS - PLEASE READ CAREFULLY
1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California
state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief
from the conviction and/or the sentence. This form is your petition for relief.
2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge the judgment
entered by a difference California state court, you must file a separate petition.
3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of
a material fact, you may be prosecuted for perjury.
4. Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts
in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to
submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
the grounds for relief from the conviction and/or sentence that you challenge.
5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. And you
must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting
additional grounds at a later date.
6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed
in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you
must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to
your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.
7. When you have completed the form, send the original and two copies to the following address:
Clerk of the United States District Court for the Central District of California
United States Courthouse
ATTN: Intake/Docket Section
312 North Spring Street
Los Angeles, California 90012
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 1 of 11
PLEASE COMPLETE THE FOLLOWING: (Check appropriate number)
This petition concerns:
1.
a conviction and/or sentence.
2.
prison discipline.
3.
a parole problem.
4.
other.
PETITION
1. Venue
a. Place of detention
b. Place of conviction and sentence
2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
a. Nature of offenses involved (include all counts) :
b. Penal or other code section or sections:
c. Case number:
d. Date of conviction:
e. Date of sentence:
f.
Length of sentence on each count:
g. Plea (check one) :
Not guilty
Guilty
Nolo contendere
h. Kind of trial (check one) :
Jury
Judge only
3. Did you appeal to the California Court of Appeal from the judgment of conviction?
Yes
No
If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 2 of 11
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
4. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal
decision?
Yes
No
If so give the following information
(and attach copies of the Petition for Review and the Supreme Court ruling if available) :
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
5. If you did not appeal:
a. State your reasons
b. Did you seek permission to file a late appeal?
Yes
No
6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction?
G Yes
G No
If so, give the following information for each such petition (use additional pages if necessary, and attach copies of the petitions and the
rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed
CV-69 (05/12)
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 3 of 11
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing) :
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
c. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 4 of 11
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
7.
Yes
No
Did you file a petition for certiorari in the United States Supreme Court?
Yes
No
If yes, answer the following:
(1) Docket or case number (if you know):
(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
8. 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 five grounds. Summarize
briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you
must state facts specifically setting forth what your attorney did or failed to do.
CAUTION:
Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust
your state court remedies with respect to each ground on which you are requesting relief from the
federal court. This means that, prior to seeking relief from the federal court, you first must
present all of your grounds to the California Supreme Court.
a. Ground one:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
b. Ground two:
(1) Supporting FACTS:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 5 of 11
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
Yes
No
c. Ground three:
(1) Supporting FACTS:
d. Ground four:
(1) Supporting FACTS:
e. Ground five:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 6 of 11
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
9. If any of the grounds listed in paragraph 7 were not previously presented to the California Supreme Court, state
briefly which grounds were not presented, and give your reasons:
10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction?
Yes
No
If so, give the following information for each such petition
(use additional pages if necessary, and attach copies of the petitions and
the rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 7 of 11
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to
this judgment of conviction?
Yes
No
If so, give the following information (and attach a copy of the petition if available):
(1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
12. Are you presently represented by counsel?
Yes
No
If so, provide name, address and telephone number:
WHEREFORE, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding,
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 8 of 11
Petitioner
Respondent(s)
ELECTION REGARDING
CONSENT TO PROCEED BEFORE
A UNITED STATES MAGISTRATE JUDGE
•
A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case,
including dispositive matters, and entry of final judgment. However, a magistrate judge may be assigned
to rule on dispositive matters only if all parties voluntarily consent.
•
Parties are free to withhold consent to magistrate judge jurisdiction without adverse substantive
consequences.
•
If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to
the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
•
Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge
will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to
the district judge as to all dispositive matters.
Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge,
and sign below.
Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.
No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner/Counsel for Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 9 of 11
Petitioner
DECLARATION IN SUPPORT
OF REQUEST
TO PROCEED
IN FORMA PAUPERIS
Respondent(s)
I,
, declare that I am the petitioner in the above entitled case;
that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am
entitled to relief.
1. Are you presently employed?
Yes
No
a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your
employer.
b. If the answer is no, state the date of last employment and the amount of the salary and wages per month which
you received.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment?
Yes
No
b. Rent payments, interest or dividends?
Yes
No
c. Pensions, annuities or life insurance payments?
Yes
No
d. Gifts or inheritances?
Yes
No
e. Any other sources?
Yes
No
If the answer to any of the above is yes, describe each source of money and state the amount received from each
during the past twelve months:
3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts)
Yes
CV-69 (05/12)
No
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 10 of 11
If the answer is yes, state the total value of the items owned:
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary
household furnishings and clothing)
Yes
No
If the answer is yes, describe the property and state its approximate value:
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how
much you contribute toward their support:
I, declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
Signature of Petitioner
CERTIFICATE
I hereby certify that the Petitioner herein has the sum of $
on account to his credit
institution where he is
at the
confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said
institution:
Date
CV-69 (05/12)
Authorized Officer of Institution/Title of Officer
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 11 of 11
NAME
PRISON IDENTIFICATION/BOOKING NO.
ADDRESS OR PLACE OF CONFINEMENT
Note:
It is your responsibility to notify the Clerk of Court in writing of any
change of address. If represented by an attorney, provide his name,
address, telephone and facsimile numbers, and e-mail address.
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CASE NUMBER:
CV
To be supplied by the Clerk of the United States District Court
FULL NAME (Include name under which you were convicted )
Petitioner,
v.
G __________________ AMENDED
PETITION FOR WRIT OF HABEAS CORPUS
BY A PERSON IN STATE CUSTODY
28 U.S.C. § 2254
NAME OF WARDEN, SUPERINTENDENT, JAILOR OR AUTHORIZED
PERSON HAVING CUSTODY OF PETITIONER
Respondent.
PLACE/COUNTY OF CONVICTION
PREVIOUSLY FILED, RELATED CASES IN THIS DISTRICT COURT
(List by case number )
CV
CV
INSTRUCTIONS - PLEASE READ CAREFULLY
1. To use this form, you must be a person who either is currently serving a sentence under a judgment against you in a California
state court, or will be serving a sentence in the future under a judgment against you in a California state court. You are asking for relief
from the conviction and/or the sentence. This form is your petition for relief.
2. In this petition, you may challenge the judgment entered by only one California state court. If you want to challenge the judgment
entered by a difference California state court, you must file a separate petition.
3. Make sure the form is typed or neatly handwritten. You must tell the truth and sign the form. If you make a false statement of
a material fact, you may be prosecuted for perjury.
4. Answer all the questions. You do not need to cite case law, but you do need to state the federal legal theory and operative facts
in support of each ground. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to
submit additional or correct information. If you want to submit a legal brief or arguments, you may attach a separate memorandum.
the grounds for relief from the conviction and/or sentence that you challenge.
5. You must include in this petition all the grounds for relief from the conviction and/or sentence that you challenge. And you
must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting
additional grounds at a later date.
6. You must pay a fee of $5.00. If the fee is paid, your petition will be filed. If you cannot afford the fee, you may ask to proceed
in forma pauperis (as a poor person). To do that, you must fill out and sign the declaration of the last two pages of the form. Also, you
must have an authorized officer at the penal institution complete the certificate as to the amount of money and securities on deposit to
your credit in any account at the institution. If your prison account exceeds $25.00, you must pay the filing fee.
7. When you have completed the form, send the original and two copies to the following address:
Clerk of the United States District Court for the Central District of California
United States Courthouse
ATTN: Intake/Docket Section
312 North Spring Street
Los Angeles, California 90012
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 1 of 11
PLEASE COMPLETE THE FOLLOWING: (Check appropriate number)
This petition concerns:
1.
a conviction and/or sentence.
2.
prison discipline.
3.
a parole problem.
4.
other.
PETITION
1. Venue
a. Place of detention
b. Place of conviction and sentence
2. Conviction on which the petition is based (a separate petition must be filed for each conviction being attacked).
a. Nature of offenses involved (include all counts) :
b. Penal or other code section or sections:
c. Case number:
d. Date of conviction:
e. Date of sentence:
f.
Length of sentence on each count:
g. Plea (check one) :
Not guilty
Guilty
Nolo contendere
h. Kind of trial (check one) :
Jury
Judge only
3. Did you appeal to the California Court of Appeal from the judgment of conviction?
Yes
No
If so, give the following information for your appeal (and attach a copy of the Court of Appeal decision if available):
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 2 of 11
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
4. If you did appeal, did you also file a Petition for Review with the California Supreme Court of the Court of Appeal
decision?
Yes
No
If so give the following information
(and attach copies of the Petition for Review and the Supreme Court ruling if available) :
a. Case number:
b. Grounds raised (list each) :
(1)
(2)
(3)
(4)
(5)
(6)
c. Date of decision:
d. Result
5. If you did not appeal:
a. State your reasons
b. Did you seek permission to file a late appeal?
Yes
No
6. Have you previously filed any habeas petitions in any state court with respect to this judgment of conviction?
G Yes
G No
If so, give the following information for each such petition (use additional pages if necessary, and attach copies of the petitions and the
rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed
CV-69 (05/12)
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 3 of 11
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing) :
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
c. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each) :
(a)
(b)
(c)
(d)
(e)
(f)
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 4 of 11
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
7.
Yes
No
Did you file a petition for certiorari in the United States Supreme Court?
Yes
No
If yes, answer the following:
(1) Docket or case number (if you know):
(2) Result:
(3) Date of result (if you know):
(4) Citation to the case (if you know):
8. 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 five grounds. Summarize
briefly the facts supporting each ground. For example, if you are claiming ineffective assistance of counsel, you
must state facts specifically setting forth what your attorney did or failed to do.
CAUTION:
Exhaustion Requirement: In order to proceed in federal court, you must ordinarily first exhaust
your state court remedies with respect to each ground on which you are requesting relief from the
federal court. This means that, prior to seeking relief from the federal court, you first must
present all of your grounds to the California Supreme Court.
a. Ground one:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
b. Ground two:
(1) Supporting FACTS:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 5 of 11
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
Yes
No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
G Yes
G No
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
G Yes
G No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
G Yes
G No
Yes
No
c. Ground three:
(1) Supporting FACTS:
d. Ground four:
(1) Supporting FACTS:
e. Ground five:
(1) Supporting FACTS:
(2) Did you raise this claim on direct appeal to the California Court of Appeal?
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 6 of 11
(3) Did you raise this claim in a Petition for Review to the California Supreme Court?
Yes
No
(4) Did you raise this claim in a habeas petition to the California Supreme Court?
Yes
No
9. If any of the grounds listed in paragraph 7 were not previously presented to the California Supreme Court, state
briefly which grounds were not presented, and give your reasons:
10. Have you previously filed any habeas petitions in any federal court with respect to this judgment of conviction?
Yes
No
If so, give the following information for each such petition
(use additional pages if necessary, and attach copies of the petitions and
the rulings on the petitions if available):
a. (1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
b. (1) Name of court:
(2) Case number:
(3) Date filed
(or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
(5) Date of decision:
CV-69 (05/12)
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 7 of 11
(6) Result
(7) Was an evidentiary hearing held?
Yes
No
11. Do you have any petitions now pending (i.e., filed but not yet decided) in any state or federal court with respect to
this judgment of conviction?
Yes
No
If so, give the following information (and attach a copy of the petition if available):
(1) Name of court:
(2) Case number:
(3) Date filed (or if mailed, the date the petition was turned over to the prison authorities for mailing):
(4) Grounds raised (list each):
(a)
(b)
(c)
(d)
(e)
(f)
12. Are you presently represented by counsel?
Yes
No
If so, provide name, address and telephone number:
WHEREFORE, petitioner prays that the Court grant petitioner relief to which he may be entitled in this proceeding,
Signature of Attorney (if any)
I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 8 of 11
Petitioner
Respondent(s)
ELECTION REGARDING
CONSENT TO PROCEED BEFORE
A UNITED STATES MAGISTRATE JUDGE
•
A magistrate judge is available under 28 U.S.C. § 636 ( c) to conduct all proceedings in this case,
including dispositive matters, and entry of final judgment. However, a magistrate judge may be assigned
to rule on dispositive matters only if all parties voluntarily consent.
•
Parties are free to withhold consent to magistrate judge jurisdiction without adverse substantive
consequences.
•
If both parties consent to have a magistrate judge decide the case, any appeal would be made directly to
the Ninth Circuit Court of Appeals, as if a district judge had decided the matter.
•
Unless both parties consent to have a magistrate judge decide the case, the assigned magistrate judge
will continue to decide only non-dispositive matters, and will issue a Report and Recommendation to
the district judge as to all dispositive matters.
Please check the “yes” or “no” box regarding your decision to consent to a United States Magistrate Judge,
and sign below.
Yes, I voluntarily consent to have a United States Magistrate Judge conduct all further proceedings in this case, decide
all dispositive and non-dispositive matters, and order the entry of final judgment.
No, I do not consent to have a United States Magistrate Judge conduct all further proceedings in this case.
Executed on
Date
CV-69 (05/12)
Signature of Petitioner/Counsel for Petitioner
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 9 of 11
Petitioner
DECLARATION IN SUPPORT
OF REQUEST
TO PROCEED
IN FORMA PAUPERIS
Respondent(s)
I,
, declare that I am the petitioner in the above entitled case;
that in support of my motion to proceed without being required to prepay fees, costs or give security therefor, I state that
because of my poverty I am unable to pay the costs of said proceeding or to give security therefor; that I believe I am
entitled to relief.
1. Are you presently employed?
Yes
No
a. If the answer is yes, state the amount of your salary or wages per month, and give the name and address of your
employer.
b. If the answer is no, state the date of last employment and the amount of the salary and wages per month which
you received.
2. Have you received, within the past twelve months, any money from any of the following sources?
a. Business, profession or form of self-employment?
Yes
No
b. Rent payments, interest or dividends?
Yes
No
c. Pensions, annuities or life insurance payments?
Yes
No
d. Gifts or inheritances?
Yes
No
e. Any other sources?
Yes
No
If the answer to any of the above is yes, describe each source of money and state the amount received from each
during the past twelve months:
3. Do you own any cash, or do you have money in a checking or savings account? (Include any funds in prison accounts)
Yes
CV-69 (05/12)
No
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 10 of 11
If the answer is yes, state the total value of the items owned:
4. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property? (Excluding ordinary
household furnishings and clothing)
Yes
No
If the answer is yes, describe the property and state its approximate value:
5. List the persons who are dependent upon you for support, state your relationship to those persons, and indicate how
much you contribute toward their support:
I, declare (or certify, verify or state) under penalty of perjury that the foregoing is true and correct.
Executed on
Date
Signature of Petitioner
CERTIFICATE
I hereby certify that the Petitioner herein has the sum of $
on account to his credit
institution where he is
at the
confined. I further certify that Petitioner likewise has the following securities to his credit according to the records of said
institution:
Date
CV-69 (05/12)
Authorized Officer of Institution/Title of Officer
PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (28 U.S.C § 2254)
Page 11 of 11
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