Opinion
06-CV-0405S.
January 21, 2009
DECISION and ORDER
Petitioner, Nathaniel Beard, Jr., who filed this petition for a writ of habeas corpus pro se, has now filed a letter requesting that the petition be stayed and held in abeyance "[d]ue to the fact that [he] recently received some new information that [he] would like to submit to the [state] court, therefore exhausting [his] remedies which will allow [him] to eventually consolidate the recently submitted 440.10 motion with [his] pending federal habeas petition." (Docket No. 15). For the following reasons, the request to stay the petition and hold it in abeyance pending state court exhaustion proceedings is denied without prejudice to refiling upon a proper showing pursuant to Rhines v. Weber, 544 U.S. 269, 277-78, 125 S. Ct. 1528, 161 L. Ed. 2d 440 (2005).
In Rhines, the United States Supreme Court directly addressed the stay-and-abeyance approach that had been utilized for a number years by several Circuits, including the Second, see Zarvela v. Artuz, 254 F.3d 374 (2d Cir.), cert. denied sub. nom. Fischer v. Zarvela, 534 U.S. 1015, 122 S. Ct. 506, 151 L. Ed. 2d 415 (2001). That approach allowed a district court to exercise its discretion to stay proceedings with respect to a petitioner's exhausted claims, and to dismiss without prejudice the unexhausted claims so that the petitioner could return to state court in order to exhaust the unexhausted claims and then return to the district court to reinstate the previously dismissed claims.
While approving the use of the stay-and-abeyance approach, the Supreme Court nonetheless limited its use to only those situations where petitioner made a showing that there was "good cause" for his failure to exhaust the claims in state court prior to filing the federal habeas petition, that the unexhausted claims are not "plainly meritless," and that he did not engage in any dilatory litigation tactics. Rhines, 544 U.S. at 277-78; see also, Faden v. Annetts, 05 Civ. 1850 (BSJ) (DF), 2005 U.S. Dist. LEXIS 14910, at *2 (S.D.N.Y. July 26, 205) (denying request for stay without prejudice to renew upon a showing of (1) good cause for petitioner's failure to exhaust the new claims, (2) that the claims either relate back to the originally pled claims, or petitioner was not able to raise the new claims in the original petition, and (3) that the new claims are "potentially meritorious" on federal habeas corpus review).
"[T]he majority of th[e] lower courts which have addressed the issue [of good cause] at length analogized the `good cause' requirement to the requirement that a habeas corpus petitioner demonstrate `cause' to excuse other types of procedural defaults." Ramdeo v. Phillips, No. 04-CV-1157 (SLT), 2006 W L 297462, *5 (E.D.N.Y., Feb. 8, 2006) (citations omitted). "Even in cases which expressly reject the notion that `good cause' is analogous to `cause' for a procedural default (citation omitted), the `good cause' has arisen from external factors, not petitioner's own decisions." Ramdeo, 2006 WL 297462, at * 6.
In the instant matter, petitioner has failed to address, let alone establish, any of the three criteria for the granting of a stay as set forth in Rhines, Petitioner simply asks the Court to stay the petition to allow him to go back to state court and exhaust some unspecified claim. He does state he just learned of "new" information, which the Court presumes is the basis of the new claim he wishes to exhaust and then raise herein. Petitioner offers no justification for why he did not previously exhaust this claim, whatever it may be, and provides nothing in support of this claim which would allow the Court to make a preliminary determination as to whether the claim is "plainly meritless."
If the claim petitioner now seeks to exhaust in state court is a "new" claim which was not pled in the original petition, the petition before the Court is not a "mixed" petition, Rose v. Lundy, 455 U.S. 509, 518 (1982), and the Court has no discretion to stay it and hold in abeyance. See Zarvela, 254 F.3d at 381. Therefore, if the claim petition now seeks to exhaust and then wishes to add to the petition is a new claim not presently raised in the original petition, petitioner must, in addition to filing a renewed motion for a stay, file an amended petition which contains both the claims raised in the original petition and the new claim. The amended petition must also set forth whether or not the claims raised are exhausted or unexhausted and, if unexhausted, the status of the state court exhaustion proceedings.
Additionally, if the claim petitioner wishes to exhaust in state court (and will then seek to add to the petition) is a new claim — i.e., one not already raised in the petition — petitioner has not established that the new claim "relate[s] back" to the claims pled in the petition and is thus not barred by the statute of limitations, 28 U.S.C. § 2244(d)(1). See Fed.R.Civ.P. 15(a); Mayle v. Felix, 545 U.S. 644, 650, 125 S. Ct. 2562, 162 L. Ed. 2d 582 (2005) ("An amended habeas petition . . . does not relate back (and thereby escape AEDPA's one-year time limit) when it asserts a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.").
Without a showing of good cause, and that the claim presently being exhausted is not "plainly meritless," and that petitioner has not engaged in any dilatory litigation tactics, petitioner's request for a stay of these proceedings must be denied.
IT IS HEREBY ORDERED that petitioner's letter request (Docket No. 15) to stay the petition for a writ of habeas corpus is DENIED without prejudice to re-filing upon a adequate showing pursuant to Rhines, 544 U.S. at 277-78, that (1) there is good cause for petitioner's failure to exhaust the claim he claims to now be exhausting in state court, (2) said claim relates back to the claims originally pled in the petition, and (3) the claim is not plainly meritless;
FURTHER, that any renewed motion to stay these proceedings must be filed no later than 30 days after petitioner's receipt of this Order, and respondent shall have 20 days upon receipt of the renewed motion for a stay, if any, to file a response to said motion. Any renewed motion for a stay filed after that time period will be denied, unless petitioner can establish good cause for his inability to file a renewed motion for a stay within 30 days. The renewed motion for a stay should address what steps, if any, petitioner has taken to exhaust the new claim in state court and the status of any state court motions or proceedings related to the new claim;
Nothing in this order prevents petitioner from filing a state court motion for post-conviction relief while this action is pending.
FURTHER, that if the claim petitioner is now seeking to exhaust in state court is a "new" claim not raised in the original petition now before the Court, petitioner must file a proposed amended petition along with the renewed motion for a stay, which includes the claims raised in the original petition and the new claim petitioner is now seeking to exhaust in state court and wishes to add to this petition; and
FURTHER, the Clerk of the Court is directed to send to petitioner along with this Order a Form for filing a Petition for Habeas Corpus Relief Under 28 U.S.C. § 2254 for his use in filing a proposed amended petition, and the Court's Pro Se Form Motion and Instructions Packet for his use, if he so chooses, in filing a renewed motion for a stay-and-abeyance.
SO ORDERED. 28 U.S.C. § 2254 federal 28 U.S.C. § 2255 Instructions-Read Carefully in forma pauperis, in forma pauperis, in forma pauperis,
PETITION UNDER FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY ********** (If you were sentenced under a judgment which you wish to attack, you should file a motion under in the federal court which entered the judgment.) PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY (1) You must legibly handwrite or type this petition and sign it under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. You must answer all questions concisely in the proper space on the form. (2) You may not attach additional pages except with respect to the facts which you rely upon to support your grounds for relief and except for court orders and decisions that this form requests. You need not cite any legal authorities. If you submit briefs or legal arguments, you should submit them in a separate memorandum. (3) Upon receipt of a fee of $5, your petition will be filed if it is in proper order. (4) If you do not have the necessary funds for transcripts, counsel, appeal, and other costs connected with a motion of this type, you may request permission to proceed in which event you must execute form AO 240 or any other form required by the court, setting forth information establishing your inability to pay the costs. If you wish to proceed 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 in the institution. If the court does not grant your request to proceed you must pay the filing fee as required by the rules of the district court. (5) You may only challenge judgments entered by one court in a single motion. If you seek to challenge judgments entered by different courts either in the same state or in different states, you must file separate petitions as to each court. (6) You must include all grounds for relief and all facts supporting such grounds for relief in the petition you file seeking relief from any judgment of conviction. (7) When you fully complete the petition, you must mail the original and at least two copies to: Clerk of the Court United States District Court Western District of New York 304 U.S. Courthouse 68 Court Street Buffalo, NY 14202 (8) Petitions which do not conform to these instructions will be returned with a notation as to the deficiency.PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
District Name Prisoner No. Case No. Place of Confinement Name of Petitioner (include name under which convicted) Name of Respondent (authorized person having custody of petitioner) The Attorney General of the State of: PETITION Nature of offense involved (all counts) attach a copy of the appeals court decision to this petition all attach a copy of the higher state court decision to this petition all attach a copy of the United States Supreme Court decision to this petition all 28 U.S.C. 2254attach a copy of that court's decision to this petition all second attach a copy of that court's decision to this petition all attach a copy of that court's decision to this petition attach a copy of the appeals court decision to this petition each all each attach a copy of that court's decision to this petition all not concisely facts facts CAUTION: In order to proceed in federal court, you must ordinarily first exhaust your available state court remedies as to each ground on which you request action by the federal court. See 28 U.S.C. § 2254(b). If you fail to set forth all grounds in this petition, you may be barred from presenting additional grounds at a later date. See 28 U.S.C. § 2244(b). you should raise in this petition all available grounds all United States District Court V. 1. Name and location of court which entered the judgment of conviction under attack _____________________________ ______________________________________________________________________________________________________________ 2. Date of judgment of conviction _______________________________________________________________________________ 3. Length of sentence ___________________________________________________________________________________________ 4. _______________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 5. What was your plea? (Check one) (a) Not guilty (b) Guilty (c) Nolo contendere If you entered a guilty plea to one count or indictment, and a not guilty plea to another count or indictment, give details: ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 6. If you pleaded not guilty, what kind of trial did you have? (Check one) (a) Jury (b) Judge only 7. Did you testify at the trial? Yes No 8. Did you appeal from the judgment of conviction? Yes No 9. If your answer to 8. was "yes," and answer the following: (a) Name of court (e.g., NYS Sup. Court, 4th Dept.) __________________________________________________________ (b) Result ___________________________________________________________________________________________________ (c) Date of result and citation, if known ____________________________________________________________________ (d) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ 10. Did you seek further review of the appeals court decision by a higher state court (e.g., the NYSCourt of Appeals)? Yes No 11. If your answer to 10. was "yes," and answer the following: (a) Name of court ____________________________________________________________________________________________ (b) Result ___________________________________________________________________________________________________ ______________________________________________________________________________________________________________ (c) Date of result and citation, if known __________________________________________________________________ (d) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ 12. Did you file a petition for certiorari in the United States Supreme Court? Yes No 13. If your answer to 12. was "yes," and please answer the following with respect to each direct appeal you asked the United States Supreme Court to review: (a) Result ___________________________________________________________________________________________________ ______________________________________________________________________________________________________________ (b) Date of result and citation, if known ____________________________________________________________________ (c) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ 14. Other than a direct appeal from the judgment of conviction and sentence, have you previously filed any petitions, applications, or motions (e.g. a petition under NY CPL § 440, a state habeas petition, or a previous petition under ) with respect to this judgment in any court, state or federal? Yes No 15. If your answer to 14. was "yes," and give the following information: (a) Name of court ____________________________________________________________________________________________ (b) Nature of proceeding _____________________________________________________________________________________ (c) Date Filed _______________________________________________________________________________________________ (d) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (e) Did you receive an evidentiary hearing on your petition, application, or motion? Yes No (f) Result ___________________________________________________________________________________________________ (g) Date of result ___________________________________________________________________________________________ 16. If your answer to 14. was "yes" and you also filed a petition, application, or motion, and give the same information: (a) Name of court ____________________________________________________________________________________________ (b) Nature of proceeding _____________________________________________________________________________________ (c) Date Filed _______________________________________________________________________________________________ (d) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (e) Did you receive an evidentiary hearing on your petition, application, or motion? Yes No (f) Result ___________________________________________________________________________________________________ (g) Date of result ___________________________________________________________________________________________ As to any third, fourth, etc. petition, application, or motion, and give the same information asked for under 15. and 16. 17. If your answer to 14. was "yes" and if the court did not grant the petition(s), application(s), or motion(s) you listed under 15. and 16., did you appeal to an intermediate court of appeals (e.g., the New York State Court of Appeals or the Second Circuit Court of Appeals)? Yes No 18. If your answer to 17. was "yes," and answer the following regarding petition, application, or motion: (a) Name of court ____________________________________________________________________________________________ (b) Date Filed _______________________________________________________________________________________________ (c) Result ___________________________________________________________________________________________________ (d) Date of result and citation, if known ____________________________________________________________________ (e) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ 19. Did you appeal to the highest state court (e.g., the NYS Court of Appeals) or the United States Supreme Court for review of decisions regarding the petition(s), application(s), or motion(s) you listed in 15. and 16.? (a) First petition Yes No (b) Second petition Yes No (c) Third petition Yes No [List any other petition and indicate yes or no.] 20. For "yes" answer in 19., and give the following information: (a) Name of court ____________________________________________________________________________________________ (b) Date filed ______________________________________________________________________________________________ (c) Result __________________________________________________________________________________________________ (d) Date of result and citation, if known ___________________________________________________________________ (e) List grounds you raised (1) __________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ 21. If you did appeal from the adverse action on any petition, application, or motion, explain briefly why you did not: ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 22. State every ground on which you claim that you are being held unlawfully. Summarize briefly the supporting each ground. If necessary, you may attach pages stating additional grounds and supporting same. For your information, the following is a list of the most frequently raised grounds for relief in habeas corpus proceedings. Each statement preceded by a letter constitutes a separate ground for possible relief. You may raise any grounds which you may have other than those listed if you have exhausted your state court remedies with respect to them. However, (relating to this conviction) on which you base your allegations that you are being held in custody unlawfully. Do not check any of these listed grounds. If you select one or more of these grounds for relief, you must allege facts. The petition will be returned to you if you merely check (a) through (j) or any one of these grounds. (a) Conviction obtained by plea of guilty which was unlawfully induced or not made voluntarily with understanding of the nature of the charge and the consequences of the plea. (b) Conviction obtained by use of coerced confession. (c) Conviction obtained by use of evidence gained pursuant to an unconstitutional search and seizure. (d) Conviction obtained by use of evidence obtained pursuant to an unlawful arrest. (e) Conviction obtained by a violation of the privilege against self-incrimination. (f) Conviction obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to the defendant. (g) Conviction obtained by a violation of the protection against double jeopardy. (h) Conviction obtained by action of a grand or petit jury which was unconstitutionally selected and impaneled. (i) Denial of effective assistance of counsel. (j) Denial of right of appeal. A. Ground one: _____________________________________________________________________________________________ _________________________________________________________________________________________________________ Supporting FACTS (state briefly without citing cases or law): ___________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ B. Ground two: _____________________________________________________________________________________________ _________________________________________________________________________________________________________ Supporting FACTS (state briefly without citing cases or law): ___________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ C. Ground three: ___________________________________________________________________________________________ _________________________________________________________________________________________________________ Supporting FACTS (state briefly without citing cases or law): ___________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ D. Ground four: ____________________________________________________________________________________________ _________________________________________________________________________________________________________ Supporting FACTS (state briefly without citing cases or law): ___________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ _________________________________________________________________________________________________________ 23. If you did not previously present any of the grounds listed in 22A, 22B, 22C, and 22D in any other court, state or federal, state briefly what grounds you did not present and give your reasons for not presenting them: ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ ______________________________________________________________________________________________________________ 24. Do you have any petition or appeal now pending in any court, either state or federal, as to the judgment under attack? Yes No (a) Name of court ____________________________________________________________________________________________ (b) Nature of proceeding _____________________________________________________________________________________ (c) Date filed _______________________________________________________________________________________________ (d) List grounds you raised (1) ___________________________________________________________________ __________________________________________________________________________________________________________ (2) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (3) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ (4) ______________________________________________________________________________________________________ __________________________________________________________________________________________________________ 25. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you challenge in this petition: (a) At preliminary hearing ___________________________________________________________________________________ ______________________________________________________________________________________________________________ (b) At arraignment and plea __________________________________________________________________________________ ______________________________________________________________________________________________________________ (c) At trial _________________________________________________________________________________________________ ______________________________________________________________________________________________________________ (d) At sentencing ____________________________________________________________________________________________ ______________________________________________________________________________________________________________ (e) On appeal ________________________________________________________________________________________________ ______________________________________________________________________________________________________________ (f) In any post-conviction proceeding ________________________________________________________________________ ______________________________________________________________________________________________________________ (g) On appeal from any adverse ruling in a post-conviction proceeding ________________________________________ ______________________________________________________________________________________________________________ 26. Were you sentenced on more than one count of an indictment, or on more than one indictment, in the same court and at the same time? Yes No 27. Do you have any future sentence to serve after you complete the sentence imposed by the judgment under attack? Yes No (a) If so, give name and location of court which imposed sentence to be served in the future: ________________ ______________________________________________________________________________________________________________ (b) Give date and length of the above sentence: ______________________________________________________________ ______________________________________________________________________________________________________________ (c) Have you filed, or do you contemplate filing, any petition attacking the judgment which imposed the sentence to be served in the future? Yes No 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 under penalty of perjury that the foregoing is true and correct. Executed on __________________________________________________ (Date) _______________________________________________ Signature of Petitioner INSTRUCTIONS FOR PREPARING A MOTION IN A CIVIL ACTION Check the Western District's web site at www.nywd.uscourts.gov for copies of many of the Court's forms and other useful information. A "motion" is the means by which a party to a lawsuit requests the judge to take some specific action in the case.A Motion can be brought to ask the Court to order any of the kinds of relief described in the Federal Rules of Civil Procedure, or to ask the Court to order a party to take any other action required by law, or to ask the Court to take some action itself.
The Federal Rules of Civil Procedure describe many of the purposes for which a Motion can be used. (See, e.g., Rules 7, 11, 12, 37, 50 and 56). However, a Motion can be employed to ask the Court to do other things as well. The most common type of Motion in pro se cases which is not included in the above list is a Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915.
These instructions and attached examples are designed to assist you in preparing your Motion in the proper form; they are not intended to provide you with any information about the substantive relief you can request in various motions. To learn about the kinds of relief you can request by motion, you should carefully review the Federal Rules of Civil Procedure, review the substantive law under which you are bringing your lawsuit, review 28 U.S.C. § 1915, and familiarize yourself with the Western District of New York's Local Rules of Civil Procedure 5, 7, 26, 37, and 56 (the Local Rules are available at www.nywd.uscourts.gov on the Western District web site).
1. FORM OF YOUR MOTION PAPERS A. Notice of Motion (see Form A below)
The proper form for Motion papers requires you to present the Court with two or three separate documents which all become part of your Motion papers. The first document is a Notice of Motion. The format for the Notice of Motion is set out in Form A below.
In the upper left-hand corner of your Notice of Motion, copy the caption of your case as it appears on an official document (for example, on your Order granting you permission to proceed in forma pauperis). In the upper right-hand corner, at the same height on the paper as the caption, write the docket number of your case (for example 98-CV-0123C). Below the docket number write, "Notice of Motion."
Beneath the caption your motion should say " PLEASE TAKE NOTICE, that the undersigned will bring a motion _____." In the blank space, you should write the relief you want the Court to give you. For example, you might say, "for an order appointing counsel to represent me" or "for an order compelling the defendants to respond to plaintiff's interrogatories" (read Local Rules of Civil Procedure 37 first) or "for an order compelling discovery pursuant to Federal Rules of Civil Procedure Rule 37;" or "for an order granting summary judgment" (Read Local Rules of Civil Procedure and Fed.R.Civ.P. 56 first).
Sign your Notice of Motion. The judge's courtroom deputy will schedule your Motion according to the judge's calendar and advise you of the date. Not all motions are scheduled for hearings; some are decided on the basis of the papers submitted.
NOTE: If you are opposing a motion brought by another party, you do NOT need to file a notice of motion, but the following papers, the affidavits (and/or affirmations) may be used for opposing a motion.
B. Affidavit in Support (see Form B below)
The next part of your Motion is the Affidavit in Support of your Motion. The caption and index number on your affidavit should be written out just as on the Notice of Motion, but instead of writing "Notice of Motion," you should write "Affidavit in Support of Motion" below the docket number.
NOTE: These instructions assume that you have access to a Notary Public, and can get your papers notarized. An affidavit is a statement that a person swears is true before a Notary Public, and is witnessed by that Notary. If you do not have access to a Notary Public, you may use an affirmation , instead. The difference between an Affidavit and an Affirmation is that in an affirmation, instead of a Notary's seal, the party who signs the affirmation must include a short statement affirming that the statement is true.
Your affidavit should briefly state the relief you want the Court to grant (in the first paragraph), and then should explain in short numbered paragraphs the reasons you believe you are entitled to that relief. (For example, in moving for Appointment of Counsel, you should describe why you believe that you are unable to continue the action without legal assistance, you should explain to the Court why you believe your lawsuit has merit, and you should tell the Court what efforts you have made to secure counsel on your own.) If you have exhibits which support your position, you should attach copies to the affidavit and state in the affidavit why/how the exhibit supports your position. You may also submit affidavits from other people also, if they are relevant to the relief you are seeking (or opposing) in your affidavit.
C. Memorandum of Law
In certain instances, if you believe it will assist the Court, you may wish to submit a Memorandum of Law in support of your motion. You are not required to submit a Memorandum of Law with every motion, but such memoranda are usually necessary when you expect a legal dispute as to whether you are entitled to the relief you have requested. A Memorandum of Law should be captioned and titled as are the other Motion papers. Like all papers submitted in federal court, it must be signed .
Please note that when submitting a Motion for Summary Judgment, you should include both a Memorandum of Law and a separate short and concise statement of the facts material to your case which you believe are not disputed by your opponent. (See Local Rules of Civil Procedure 56.) If you are opposing a motion for summary judgment, you must also submit a Memorandum of Law and a Statement of Undisputed Facts.
2. SERVICE OF YOUR MOTION PAPERS (see Form C(1) and Form C(2) below)
You are required to serve a copy of any Motion papers you file in your lawsuit on your opponents, or on their lawyer if they have one. The only exception to this rule is when you are filing a Motion before your opponents have answered your complaint. In many cases, your Motion will be addressed to the other party because you are trying to get the Court to direct the other party to do something. However, even when you are simply asking the Court to take some action on its own (such as appoint counsel), you must send a copy of your Motion papers to your opponent.
You must also advise the Court that you have served a copy of all of your motion papers on your opponents by enclosing with the motion papers an Affirmation or Affidavit of Service (see Forms C(1) and C(2) below). Like the Affidavit/Affirmation in Support of your Motion, an affidavit of service is signed and notarized and an affirmation of service is signed under penalty of perjury.
Do not complete your affidavit of service until after you have prepared the copies of your Motion papers for all other parties and either mailed them or hand-delivered them to those parties.
3. TECHNICALITIES
original the signature on the papers must be original
Any attached exhibits may be and often should be copies of the original papers.
If you do not have access to photocopying or carbon paper, you may write out several hand-written copies of your motion. Make sure that every copy is exactly the same as every other copy.
Send a copy of your Motion with an original signature to the Clerk's office in the city where the judge who is hearing your case is located.
In Rochester: Chief Judge Larimer, Judges Siragusa and Telesca, and Magistrate Judges Feldman and Bauer are located in Rochester; address your motion papers to: Clerk's Office, United States District Court, 2120 U.S. Courthouse, 100 State Street, Rochester New York 14614. (Phone: (585) 263-6263.)
In Buffalo: Judges Arcara, Skretny, and Curtin, and Magistrate Judges Foschio, Scott, Schroeder, and McCarthy are located in Buffalo; address your papers to: Clerk's Office, United States District Court, 304 U.S. Courthouse, 68 Street, Buffalo New York 14202-3498. (Phone: (716) 551-4211 or (716) 551-5759.)
Do not send your Motion papers directly to the judge's chamber. The Motion must be recorded in the official record of your case (the docket sheet) by the Clerk's office before the judge takes any action on it. If you mail your papers directly to the judge, you will only delay the time it takes for your papers to be considered. Do not send extra copies of your papers to the judge. Sending extra copies of your Motion papers only creates confusion, and will cause you unneeded expense and effort.
Please be assured that every Motion that is mailed to the Clerk's office is entered in the docket sheet of your case and given to the judge for consideration. However if your papers do not comply to the form described above, they may not be included in the docket sheet, and the judge may not act on your correspondence.
4. ADDITIONAL HELP
For additional examples of motions, see the Federal Rules of Civil Procedure Appendix of Forms. Specifically, you should look at Forms 19, 22, 22(b), and 23.
If you have any questions of a technical nature, you can write to the Pro Se Staff Attorney at either Clerk's office address. The Pro Se Staff Attorney maintains offices in both Buffalo and Rochester, and mail is forwarded to the Pro Se Staff Attorney from both Clerk's offices. Please be aware, however, that the Pro Se Staff Attorney is only permitted to advise you on procedural matters, and cannot assist you with the substantive aspects of your case or give you legal advice. IMPORTANT NOTE : Please make additional copies of the attached forms before you use them the first time, so that you will have copies to use for subsequent filings over the course of your case