Petition For A Writ Of Habeas Corpus By A Person In State Custody w-InstructionsStart Your Free Trial $ 38.99
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA INSTRUCTIONS FOR FILING A PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY UNDER 28 U.S.C. § 2254 I. SCOPE OF 28 U.S.C. § 2254 You may file a petition for a writ of habeas corpus under 28 U.S.C. § 2254 if you are in custody pursuant to the judgment of a state court in violation of the federal constitution or federal statutes. You may challenge either the fact or duration of your state sentence. Any challenge to violations of federal law that affect the conditions--as opposed to the fact or duration-- of your confinement should be brought in a civil rights complaint under 42 U.S.C. § 1983. If you wish to file a civil rights complaint under § 1983, you may do so on the forms provided by the clerk. Ask for the packet titled Instructions for Filing a Civil Rights Complaint by a Prisoner under 42 U.S.C. § 1983. IMPORTANT NOTES If you previously filed a petition for a writ of habeas corpus in federal court that challenged the same conviction or sentence you are challenging now and if that petition was denied or dismissed with prejudice, you must first file a motion in the U.S. Court of Appeals for the Ninth Circuit for an order authorizing this court to consider this petition. You may not file a second or successive federal habeas petition without first obtaining such an order. 28 U.S.C. § 2244(b). A petition for a writ of habeas corpus under 28 U.S.C. § 2254 will not be granted unless you have exhausted the remedies available in state court. Only one sentence or conviction may be challenged in a single petition. If you challenge more than one sentence or conviction, you must do so by separate petitions. II. FILING A PETITION A. Where to File You should file in the Northern District if you were convicted and sentenced in one of these counties: Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Monterey, Napa, San Benito, San Francisco, San Mateo, Santa Clara, Santa Cruz or Sonoma. You also should file in this district if you are challenging the manner in which your sentence is being executed, such as loss of goodtime credits, and you are confined in one of these counties. Habeas Corpus Local Rule 2254-3(a). If you are challenging your conviction or sentence and you were not convicted and sentenced in one of the above-named counties, your petition will likely be transferred to the federal district court for the district in which the state court that convicted and sentenced you is located. If you are challenging the execution of your sentence and you are not incarcerated in one of the counties listed above, your petition will likely be transferred to the federal district court for the district that includes the institution where you are confined. Habeas Corpus Local Rule 2254-3(b). B. Whom to Name as Respondent Name the person who has actual custody of you, which usually means the warden or jailor. Do not name the state, a city, a county or a court. These are not proper respondents. If you are not presently in custody pursuant to the judgment against which you seek relief but may be subject to such custody in the future (e.g., detainers), name the person in whose custody you are now and the Attorney General of the state in which the FILING INSTRUCTIONS, PETITION FOR A WRIT OF HABEAS CORPUS (rev. 8/2015) Page 1 of 2 American LegalNet, Inc. www.FormsWorkFlow.com judgment you seek to challenge was entered. C. How to File To file a habeas action, send the court the following items: Your original, completed petition form Your petition must be legibly handwritten or typewritten, and you must sign it and declare under penalty of perjury that the facts stated in it are correct. Read the entire form and explanatory comments that appear throughout it before you answer the questions. Complete all applicable questions in the blanks provided; attach additional pages if you need more space for any of your answers, clearly noting the question number to which any such continued answer refers. A check or money order for $5 or a completed application to proceed in forma pauperis (IFP) The fee for filing a petition for a writ of habeas corpus is $5. If you cannot afford to pay the fee at the time you file your petition, you may apply to proceed IFP using the forms provided by the clerk. Ask for the packet titled Instructions for Filing an Application to Proceed In Forma Pauperis by a Prisoner under 28 U.S.C. § 1915. Make copies for your records and mail the original copies of your completed forms to: Clerk, U.S. District Court for the Northern District of California, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102. III. MAGISTRATE JUDGE JURISDICTION Magistrate judges are selected through a statutorily prescribed merit selection process and are appointed by the judges of this court. The court encourages parties to consent to magistrate judge jurisdiction as it may result in an earlier resolution of the matter; the rules and procedures used to decide your case will be the same regardless of whether a district judge or a magistrate judge decides your case. But you are free to decline magistrate judge jurisdiction and request that your case be decided by a district judge. Please indicate on the Consent or Declination to Magistrate Judge Jurisdiction form provided by the clerk whether you consent or decline to consent to magistrate judge jurisdiction. IV. AFTER YOUR PETITION IS FILED The clerk will assign a case number and judge to your petition and mail you a copy of the first page, which will have the case number and judge's initials stamped on it. Please retain this copy for your records and put the case number on any case-related document you send to the court. If your petition is deficient in any way, the clerk may send you a notice that will require your response. If your case is assigned to a magistrate judge before you consented or declined to consent to magistrate judge jurisdiction, the clerk may send you a Consent or Declination to Magistrate Judge Jurisdiction form that will require your response. Please note that it is your responsibility to inform the court in writing without delay if your address changes. You will be notified at the address the court has on record whenever the court issues an order. A failure to respond to notices or orders or a failure to update your address may result in the dismissal of your case. V. INQUIRIES AND COPYING REQUESTS Because of the large volume of cases