Opinion
19-CV-9003 (CM)
10-11-2019
ANTHONY ALVEREZ, Petitioner, v. JOHN/JANE DOE, Respondent.
ORDER DIRECTING PAYMENT OF FEE OR IFP APPLICATION AND PETITION UNDER 28 U.S.C. § 2254 :
Petitioner, currently incarcerated at Sing Sing Correctional Facility ("Sing Sing"), writes a letter to this Court regarding a time limitation issue with a possible habeas corpus claim. Although it is unclear whether Petitioner intended to proceed pro se and bring a petition for a writ of habeas corpus in this Court, Petitioner's letter was opened as a new civil action.
STANDARD OF REVIEW
The Court may entertain a petition for a writ of habeas corpus on "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." 28 U.S.C. § 2254(a). Under Rule 4 of the Rules Governing § 2254 Cases, the Court has the authority to review and dismiss a § 2254 petition without ordering a responsive pleading from the state "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rules Governing § 2254 Cases, Rule 4; see Acosta v. Nunez, 221 F.3d 117, 123 (2d Cir. 2000). The Court is obliged, however, to construe pro se pleadings liberally and interpret them "to raise the strongest arguments they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original); see Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). Nevertheless, a pro se litigant is not exempt "from compliance with relevant rules of procedural and substantive law." Triestman, 470 F.3d at 477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
BACKGROUND
On January 14, 2015, Petitioner Anthony Alverez was convicted in the New York State Supreme Court, New York County, of criminal sale of a controlled substance in the third degree, criminal possession of a controlled substance in the third degree, and criminal possession of a controlled substance in the fourth degree and sentenced to an aggregate term of imprisonment of 18 years. See People v. Alverez, 73 N.Y.S.3d 137 (App. Div. Feb. 28, 2018). Petitioner challenged his conviction in the New York State Supreme Court, Appellate Division, and that court held that the evidence was sufficient to support the convictions. Id. The New York State Court of Appeals denied Petitioner leave to appeal. See People v. Alverez, 81 N.Y.S.3d 374 (June 13, 2018).
A. Filing Fee or Request to Proceed without Prepayment of Fees
To proceed with a petition for a writ of habeas corpus in this Court, a petitioner must either pay the $5.00 filing fee or, to request authorization to proceed IFP, that is, without prepayment of fees, submit a signed IFP application. See 28 U.S.C. §§ 1914, 1915.
Petitioner's letter was not accompanied by the $5.00 filing fee or an IFP application. B. Petition for Writ of Habeas Corpus
Petitioner did not file a petition and fails to identify the judgment of conviction he seeks to challenge. He also does not include any grounds for relief or any information regarding whether he has exhausted his administrative remedies with respect to any grounds he seeks to raise.
1. Rule 2 of the Rules Governing Section 2254 Cases
A state prisoner must submit a petition that conforms to the Rules Governing Section 2254 Cases. Rule 2(c) requires a petition to specify all of a petitioner's available grounds for relief, setting forth the facts supporting each of the specified grounds and stating the relief requested. A petition must permit the Court and the respondent to comprehend both the petitioner's grounds for relief and the underlying facts and legal theory supporting each ground so that the issues presented in the petition may be adjudicated.
This submission does not conform to the requirements of Rule 2(c). Petitioner fails to specify his grounds for relief and the supporting facts. Mindful of the Court's duty to construe pro se actions liberally, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), the Court has analyzed Petitioner's submission and finds that neither the Court nor a respondent could discern the constitutional basis for the petition.
2. Exhaustion of State Court Remedies
A state prisoner must exhaust all available state remedies before filing a petition for a writ of habeas corpus under § 2254. 28 U.S.C. § 2254(b); see Rose v. Lundy, 455 U.S. 509, 510 (1982). This exhaustion doctrine means that the state courts must be given the first opportunity to review constitutional errors associated with Petitioner's confinement. O'Sullivan v. Boerckel, 526 U.S. 838, 844-45 (1999). A petitioner may satisfy the exhaustion requirement by fairly presenting his claims through a state's established appellate review process. Id. "A petitioner has 'fairly presented' his claim only if he has 'informed the state court of both the factual and legal premises of the claim he asserts in federal court.'" Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997) (quoting Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982)).
In order to exhaust any issues for purpose of habeas corpus review, Petitioner must appeal his judgment of conviction to the New York State Supreme Court, Appellate Division. N.Y. Crim. P. L. § 460.70 (McKinney 2010). Should that court's decision adversely affect Petitioner, he should then seek leave to appeal to the New York Court of Appeals, the highest state court. Id. at § 460.20; see Bagley v. LaVallee, 332 F.2d 890, 892 (2d Cir. 1964). Should Petitioner raise for habeas corpus relief any grounds raised in N.Y. Crim. P. L. § 440.10 motions and/or other collateral motions, he must show that those grounds have been completely exhausted by seeking leave to appeal to the New York State Supreme Court, Appellate Division. Ramos v. Walker, 88 F. Supp. 2d 233 (S.D.N.Y. 2000).
3. Statute of Limitations
A prisoner seeking habeas relief under § 2254 must generally file a petition within one year from the latest of four benchmark dates: (1) when the judgment of conviction becomes final; (2) when a government-created impediment to making such a motion is removed; (3) when the constitutional right asserted is initially recognized by the Supreme Court, if it has been made retroactively available to cases on collateral review; or (4) when the facts supporting the claim(s) could have been discovered through the exercise of due diligence. See 28 U.S.C. § 2244(d)(1)-(2).
Petitioner's conviction became final on September 13, 2018, following "the expiration of [the] 90-day period of time to petition for certiorari in the Supreme Court of the United States." Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000). Petitioner's submission is postmarked on September 23, 2019, approximately one year and ten days after the judgment of conviction became final. He indicates in his submission that, "[j]ust until recently I found out that my leave was denied."
Under the AEDPA, when postconviction motions are filed before the expiration of the statute of limitations, those motions and related state-court proceedings may toll the statute of limitations. See 28 U.S.C. § 2244(d)(2). Postconviction motions filed after the limitations period expires, however, do not start the limitations period anew. "[P]roper calculation of Section 2244(d)(2)'s tolling provision excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year statute of limitations begins to run." Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). Section 2244(d)(2) applies only if a petitioner's postconviction motion was pending within the one-year limitations period.
4. Extension of Time to File Petition
To the extent that Petitioner seeks to have the Court grant him an extension of time to file his petition, this request must be denied.
The Second Circuit has held that "a federal court lacks jurisdiction to consider the timeliness of a § 2255 petition until a petition is actually filed [,]" because prior to an actual filing, "there is no case or controversy to be heard[.]" Green v. United States, 260 F.3d 78, 82 (2d Cir. 2001); United States v. Leon, 203 F.3d 162, 164 (2d Cir. 2000) (per curiam). The same rule applies to actions under 28 U.S.C. § 2254. Calderon v. Ashmus, 523 U.S. 740, 746 (1998) (actual "controversy" in 28 U.S.C. § 2254 action is whether petitioner is entitled to have his state-imposed conviction or sentence set aside).
Because Petitioner has not yet filed any petitioner under 28 U.S.C. § 2254, the Court lacks jurisdiction to grant his request. See Leon, 203 F.3d at 164; see also Application of Wattanasiri, 982 F. Supp. 955, 958 (S.D.N.Y. 1997) (denying request for extension of limitations period to file § 2255 motion when there was no pending habeas petition).
C. Leave to pay $5.00 filing fee or file IFP application
The Court grants Petitioner leave to either pay the $5.00 filing fee or complete and submit the attached IFP application within thirty days of the date of this order. If the Court grants the IFP application, Petitioner will be permitted to proceed without prepayment of fees. See 28 U.S.C. § 1915(a)(1).
D. Leave to file petition
The Court further grants Petitioner leave to submit a petition within sixty days of the date of this order. Should Petitioner decide to file a petition, he must state his grounds for relief and detail the steps he has taken to exhaust them fully in the New York courts. Petitioner must exhaust all available state court remedies in order to proceed with this Petition. See 28 U.S.C. § 2254(b)(1).
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, a federal habeas corpus petition must be filed within one year of the latest of four dates specified. See 28 U.S.C. § 2244(d)(1); see also Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996).
Petitioner is directed to include in his petition why the application should not be time-barred. He should allege any facts that show that he has been pursuing his rights diligently and that some extraordinary circumstance prevented him from timely submitting the petition. See Holland v. Florida, 560 U.S. 631, 649 (2010) (holding that one-year limitations period under § 2244(d) for habeas corpus petitions under 28 U.S.C. § 2254 is subject to equitable tolling in appropriate cases).
Petitioner should also state: (1) the dates that all postconviction applications in state court challenging this conviction were filed, including any petition for a writ of error coram nobis, all motions under N.Y. Crim. P. L. § 440, and any other postconviction applications, (2) when any postconviction applications were decided, (3) the dates that any appeals or applications for leave to appeal from those decisions were filed, (4) when those appeals or applications were decided, and (5) when Petitioner received notice of any state court decisions on those applications and appeals. See 28 U.S.C. § 2244(d)(2).
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, to mail a copy of this order to Petitioner, and to note service on the docket.
Petitioner is directed to either pay the $5.00 filing fee or submit a completed and signed IFP application within thirty days of the date of this order.
An IFP application is attached for Petitioner's convenience.
Petitioner is directed to file a petition containing the information specified above within sixty days of the date of this order.
A Petition Under 28 U.S.C. § 2254 form is attached to this order, which Petitioner should complete as specified above.
All documents must be submitted to the Clerk's Office and bear the same docket number as this order. Once submitted, the petition shall be reviewed for substantive sufficiency, and then, if proper, the case will be reassigned to a district judge in accordance with the procedures of the Clerk's Office. If Petitioner fails to comply with this order within the time allowed, and cannot show good cause to excuse such failure, the petition will be denied.
Because Petitioner has not at this time made a substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that appellant demonstrates good faith when seeking review of a nonfrivolous issue). SO ORDERED. Dated: October 11, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge __________ (full name of the plaintiff or petitioner applying (each person must submit a separate application)) -against- __________ (full name(s) of the defendant(s)/respondent(s)) ___ CV __________( ) ( )
(Provide docket number, if available; if filing this with your complaint, you will not yet have a docket number.)
APPLICATION TO PROCEED WITHOUT PREPAYING FEES OR COSTS
I am a plaintiff/petitioner in this case and declare that I am unable to pay the costs of these proceedings and I believe that I am entitled to the relief requested in this action. In support of this application to proceed in forma pauperis (IFP) (without prepaying fees or costs), I declare that the responses below are true: 1. Are you incarcerated? [ ] Yes [ ] No (If "No," go to Question 2.)
I am being held at: __________2. Are you presently employed? [ ] Yes [ ] No
Do you receive any payment from this institution? [ ] Yes [ ] No
Monthly amount: __________
If I am a prisoner, see 28 U.S.C. § 1915(h), I have attached to this document a "Prisoner Authorization" directing the facility where I am incarcerated to deduct the filing fee from my account in installments and to send to the Court certified copies of my account statements for the past six months. See 28 U.S.C. § 1915(a)(2), (b). I understand that this means that I will be required to pay the full filing fee.
If "yes," my employer's name and address are:3. In addition to your income stated above (which you should not repeat here), have you or anyone else living at the same residence as you received more than $200 in the past 12 months from any of the following sources? Check all that apply.
Gross monthly pay or wages: __________
If "no," what was your last date of employment? __________
Gross monthly wages at the time: __________
(a) Business, profession, or other self-employment [ ] Yes [ ] No
(b) Rent payments, interest, or dividends [ ] Yes [ ] No
(c) Pension, annuity, or life insurance payments [ ] Yes [ ] No4. How much money do you have in cash or in a checking, savings, or inmate account? 5. Do you own any automobile, real estate, stock, bond, security, trust, jewelry, art work, or other financial instrument or thing of value, including any item of value held in someone else's name? If so, describe the property and its approximate value: 6. Do you have any housing, transportation, utilities, or loan payments, or other regular monthly expenses? If so, describe and provide the amount of the monthly expense: 7. List all people who are dependent on you for support, your relationship with each person, and how much you contribute to their support (only provide initials for minors under 18): 8. Do you have any debts or financial obligations not described above? If so, describe the amounts owed and to whom they are payable: Declaration: I declare under penalty of perjury that the above information is true. I understand that a false statement may result in a dismissal of my claims. __________
(d) Disability or worker's compensation payments [ ] Yes [ ] No
(e) Gifts or inheritances [ ] Yes [ ] No
(f) Any other public benefits (unemployment, social security, food stamps, veteran's, etc.) [ ] Yes [ ] No
(g) Any other sources [ ] Yes [ ] No
If you answered "Yes" to any question above, describe below or on separate pages each source of money and state the amount that you received and what you expect to receive in the future.
If you answered "No" to all of the questions above, explain how you are paying your expenses:
Dated
__________
Signature __________
Name (Last, First, MI) __________
Prison Identification # (if incarcerated) __________
Address __________
City __________
State __________
Zip Code __________
Telephone Number
__________
E-mail Address (if available)
Petition for Relief From a Conviction or Sentence
By a Person in State Custody
(Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)
Instructions
1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief. 2. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered the judgment. 3. Make sure the form is typed or neatly written. 4. 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. 5. Answer all the questions. You do not need to cite law. 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 brief or arguments, you must submit them in a separate memorandum. 6. You must pay a fee of $5. If the fee is paid, your petition will be filed. If you cannot pay the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. If your account exceeds $ ___ , you must pay the filing fee. 7. In this petition, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different court (either in the same state or in different states), you must file a separate petition. 8. When you have completed the form, send the original and ___ copies to the Clerk of the United States District Court at this address:
Clerk, United States District Court for
Address
City, State Zip Code
9. CAUTION: You must include in this petition all the grounds for relief from the conviction 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. 10. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.
PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF
HABEAS CORPUS BY A PERSON IN STATE CUSTODY
| United States District Court | District: |
|---|---|
| Name (under which you were convicted): | Docket or Case No.: |
| Place of Confinement : | Prisoner No.: |
| Petitioner (include the name under which you were convicted) v. Respondent (authorized person having custody of petitioner) | |
| The Attorney General of the State of |
PETITION
1. (a) Name and location of court that entered the judgment of conviction you are challenging:
(b) Criminal docket or case number (if you know):2. (a) Date of the judgment of conviction (if you know):
(b) Date of sentencing:3. Length of sentence: 4. Inthiscase,wereyouconvictedon more than one count or of more than one crime? [ ] Yes [ ] No 5. Identify all crimes of which you were convicted and sentenced in this case: 6. (a) What was your plea? (Check one)
[ ] (1) Not guilty [ ] (3) Nolo contendere (no contest)
[ ] (2) Guilty [ ] (4) Insanity plea
(b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to?
(c) If you went to trial, what kind of trial did you have? (Check one)
7. Did you testify at a pretrial hearing, trial, or a post-trial hearing?[ ] Jury [ ] Judge only
[ ] Yes [ ] No 8. Did you appeal from the judgment of conviction?
[ ] Yes [ ] No 9. If you did appeal, answer the following:
(a) Name of court:
(b) Docket or case number (if you know):
(c) Result:
(d) Date of result (if you know):
(e) Citation to the case (if you know):
(f) Grounds raised:
(g) Did you seek further review by a higher state court? [ ] Yes [ ] No
If yes, answer the following:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Result:
(4) Date of result (if you know):
(5) Citation to the case (if you know):
(6) Grounds raised:
(h) Did you file a petition for certiorari in the United States Supreme Court? [ ] Yes [ ] No
10. Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court? [ ] Yes [ ] No 11. If your answer to Question 10 was "Yes," give the following information: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):
(a) (1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:
(6) Did you receive a hearing where evidence was given on your petition, application, or motion? [ ] Yes [ ] No
(7) Result:
(8) Date of result (if you know):
(b) If you filed any second petition, application, or motion, give the same information:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:
(6) Did you receive a hearing where evidence was given on your petition, application, or motion? [ ] Yes [ ] No
(7) Result:
(8) Date of result (if you know):
(c) If you filed any third petition, application, or motion, give the same information:
(1) Name of court:
(2) Docket or case number (if you know):
(3) Date of filing (if you know):
(4) Nature of the proceeding:
(5) Grounds raised:
(6) Did you receive a hearing where evidence was given on your petition, application, or motion? [ ] Yes [ ] No
(7) Result:
(8) Date of result (if you know):
(d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion?
(1) First petition: [ ] Yes [ ] No
(2) Second petition: [ ] Yes [ ] No
(3) Third petition: [ ] Yes [ ] No
12. For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground.
(e) If you did not appeal to the highest state court having jurisdiction, explain why you did not:
CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.
GROUND ONE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground One, explain why: (c) Direct Appeal of Ground One:
(1) If you appealed from the judgment of conviction, did you raise this issue? [ ] Yes [ ] No(d) Post-Conviction Proceedings:
(2) If you did not raise this issue in your direct appeal, explain why:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? [ ] Yes [ ] No(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One:
(2) If your answer to Question (d)(1) is "Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(3) Did you receive a hearing on your motion or petition? [ ] Yes [ ] No
(4) Did you appeal from the denial of your motion or petition? [ ] Yes [ ] No
(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? [ ] Yes [ ] No
(6) If your answer to Question (d)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:
GROUND TWO:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground Two, explain why: (c) Direct Appeal of Ground Two:
(1) If you appealed from the judgment of conviction, did you raise this issue? [ ] Yes [ ] No(d) Post-Conviction Proceedings:
(2) If you did not raise this issue in your direct appeal, explain why:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? [ ] Yes [ ] No
(2) If your answer to Question (d)(1) is "Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you : have used to exhaust your state remedies on Ground Two
(3) Did you receive a hearing on your motion or petition? [ ] Yes [ ] No
(4) Did you appeal from the denial of your motion or petition? [ ] Yes [ ] No
(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? [ ] Yes [ ] No
(6) If your answer to Question (d)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:
GROUND THREE:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground Three, explain why: (c) Direct Appeal of Ground Three:
(1) If you appealed from the judgment of conviction, did you raise this issue? [ ] Yes [ ] No(d) Post-Conviction Proceedings:
(2) If you did not raise this issue in your direct appeal, explain why:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? [ ] Yes [ ] No
(2) If your answer to Question (d)(1) is "Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(3) Did you receive a hearing on your motion or petition? [ ] Yes [ ] No
(4) Did you appeal from the denial of your motion or petition? [ ] Yes [ ] No
(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? [ ] Yes [ ] No
(6) If your answer to Question (d)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three:
GROUND FOUR:
(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.): (b) If you did not exhaust your state remedies on Ground Four, explain why: (c) Direct Appeal of Ground Four:
(1) If you appealed from the judgment of conviction, did you raise this issue? [ ] Yes [ ] No(d) Post-Conviction Proceedings:
(2) If you did not raise this issue in your direct appeal, explain why:
(1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court? [ ] Yes [ ] No
(2) If your answer to Question (d)(1) is "Yes," state:
Type of motion or petition:
Name and location of the court where the motion or petition was filed:(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four: 13. Please answer these additional questions about the petition you are filing:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(3) Did you receive a hearing on your motion or petition? [ ] Yes [ ] No
(4) Did you appeal from the denial of your motion or petition? [ ] Yes [ ] No
(5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? [ ] Yes [ ] No
(6) If your answer to Question (d)(4) is "Yes," state:
Name and location of the court where the appeal was filed:
Docket or case number (if you know):
Date of the court's decision:
Result (attach a copy of the court's opinion or order, if available):
(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:
(a) Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction? [ ] Yes [ ] No
If your answer is "No," state which grounds have not been so presented and give your reason(s) for not presenting them:
14. Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction that you challenge in this petition? [ ] Yes [ ] No
(b) Is there any ground in this petition that has not been presented in some state or federal court? If so, which ground or grounds have not been presented, and state your reasons for not presenting them:
If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available.15. Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for the judgment you are challenging? [ ] Yes [ ] No
If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the issues raised.16. Give the name and address, if you know, of each attorney who represented you in the following stages of the judgment you are challenging:
(a) At preliminary hearing:17. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? [ ] Yes [ ] No
(b) At arraignment and plea:
(c) At trial:
(d) At sentencing:
(e) On appeal:
(f) In any post-conviction proceeding:
(g) On appeal from any ruling against you in a post-conviction proceeding:
(a) If so, give name and location of court that imposed the other sentence you will serve in the future:18. TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.
(b) Give the date the other sentence was imposed:
(c) Give the length of the other sentence:
(d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future? [ ] Yes [ ] No
(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.Therefore, petitioner asks that the Court grant the following relief: or any other relief to which petitioner may be entitled.
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U.S.C. § 2244(d) provides in part that:
(1) A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of -
(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.
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Signature of Attorney (if any) I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on __________ (month, date, year). Executed (signed) on __________ (date).
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Signature of Petitioner If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition.