California > Federal > USDC Northern > Prisoner

Petition For A Writ Of Habeas Corpus By A Person In State Custody w-Instructions - California

Petition For A Writ Of Habeas Corpus By A Person In State Custody w-Instructions Form. This is a California form and can be used in Prisoner USDC Northern Federal .
 Fillable pdf Last Modified 2/11/2014
Get this form for FREE as a print-only pdf

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 USC ' 2254 I. SCOPE OF 28 USC ' 2254 You may file a petition for a writ of habeas corpus under 28 USC ' 2254 if you are in custody pursuant to the judgment of a state court in violation of the federal Constitution or federal laws. You may challenge either the fact or duration of your state sentence; but any challenge to violations of the federal Constitution or federal law that affects the conditions -- as opposed to the fact or duration -- of your confinement should be brought in a civil rights complaint under 42 USC ' 1983. If you want to file a civil rights complaint under 42 USC ' 1983, you may do so on forms provided by the clerk of the court. IMPORTANT NOTES: If you previously filed a petition for a writ of habeas corpus in federal court that challenged the same conviction you are challenging now and if that petition was denied or dismissed with prejudice, you must first file a motion in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider this petition. You may not file a second or subsequent federal habeas petition without first obtaining such an order. 28 USC ' 2244(b). A petition for a writ of habeas corpus under 28 USC ' 2254 will not be granted unless it appears that 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. When And 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 and Sonoma. You should also file in this district if you are challenging the manner in which your sentence is being executed, such as loss of good time 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 15 counties, your petition will likely be transferred to the United States 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 in prison in one of these counties, your petition will likely be transferred to the 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 You must name the person in whose actual custody you are. This usually means the warden or jailor. Do not name the State of California, a city, a county or the superior court of the county in which you are imprisoned or by whom you were convicted and sentenced. These are not proper respondents. Habeas Corpus Form Instructions -- page 1 Form rev. 2014 American LegalNet, Inc. www.FormsWorkFlow.com If you are not presently in custody pursuant to the state judgment against which you seek relief but may be subject to such custody in the future (e.g., detainers), you must name the person in whose custody you are now and the Attorney General of the state in which the judgment you seek to challenge was entered. C. How to File To start a habeas action, you must send the court the following items: 1. 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 petition form and the brief 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. 2. A check or money order for $5.00 or an original Prisoner's Application to Proceed In Forma Pauperis. In addition to these instructions, this packet includes a petition for a writ of habeas corpus form and an Application to Proceed In Forma Pauperis. You must use the forms provided with this packet and not any other version. You must complete the application, sign it and declare under penalty of perjury that the facts stated therein are correct. You should keep a copy of the petition and in forma pauperis application for your own records. When you have completed the forms, mail the originals to Clerk of the United States District Court for the Northern District of California, 450 Golden Gate Avenue, Box 36060, San Francisco, CA 94102. III. CONSENT TO MAGISTRATE JUDGE JURISDICTION In order to encourage the just, speedy and inexpensive determination of ' 2254 cases filed in this district, the parties may waive their right to proceed before a district judge and consent to proceed before a magistrate judge for all purposes. In accordance with 28 USC ' 636(c), upon the consent of all the parties to proceed before a magistrate judge for all purposes, 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. Magistrate judges are selected through a statutorily prescribed merit selection process and are appointed by the judges of this court. The court encourages the parties to consent to magistrate judge jurisdiction as it may result in an earlier resolution of the matter. Because of different calendar pressures, magistrate judges may be able to set hearings and trials sooner than district judges. But you are free to decline consent to magistrate judge jurisdiction. Please indicate on the last page of the petition form whether you consent or decline to consent to magistrate judge jurisdiction. IV. AFTER PETITION IS FILED You will be notified as soon as the court issues an order. It is your responsibility to inform the court in writing without delay if your address changes. Failure to do so may result in dismissal of your suit. V. INQUIRIES AND COPYING REQUESTS Because of the l
Link/Embed this Document
URL
Embed


Popular Searches

  1. custody
  2. notice of appeal
  3. Guardianship
  4. NOTICE
  5. proof of service
  6. child custody
  7. divorce
  8. affidavit of service
  9. complaint
  10. power of attorney

Bookmark and Share