Free Application for Leave to File a Second or Successive Habeas Corpus Petition by a Prisoner in State Custody - Federal

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
APPLICATION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE HABEAS CORPUS PETITION 28 U.S.C. § 2244(b) BY A PRISONER IN STATE CUSTODY

Name

Place of Confinement

Prisoner Number

INSTRUCTIONS-READ CAREFULLY

(1)

This application must be legibly handwritten or typewritten and signed by the applicant under penalty of perjury. Any false statement of a material fact may serve as the basis for prosecution and conviction for perjury. All questions must be answered concisely in the proper space on the form. The Judicial Conference of the United States has adopted the 8 ½ x 11 inch paper size for use throughout the federal judiciary and directed the elimination of the use of legal size paper. All pleadings must be on 8 ½ x 11 inch paper; otherwise we cannot accept them. All applicants seeking leave to file a second or successive petition are required to use this form, except in capital (death penalty) cases. In capital cases only, the use of this form is optional. Additional pages are not permitted except with respect to additional grounds for relief and facts which you rely upon to support those grounds. You may submit separate petitions, motions, briefs, arguments, etc., that support your application. A claim presented in a second or successive habeas corpus application under 28 U.S.C. § 2254 that was presented in a prior application shall be

(2) (3)

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dismissed. (7) In accordance with the "Anti-Terrorism and Effective Death Penalty Act of 1996," as codified at 28 U.S.C. § 2244(b), effective April 24, 1996, before leave to file a second or successive petition can be granted by the United States Court of Appeals, it is the applicant's burden to make a prima facie showing that he satisfies either of the two conditions stated below and in 28 U.S.C. § 2244(b). [A] claim presented in a second or successive habeas corpus application under [28 U.S.C.] section 2254 that was not presented in a prior application shall be dismissed unless-(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. (8) When this application is fully completed, the original and four copies, with proof of service on all parties through counsel, must be mailed to: Clerk of Court United States Court of Appeals for the First Circuit John Joseph Moakley Courthouse 1 Courthouse Way, Suite #2500 Boston, Massachusetts 02210

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APPLICATION
1. (a) (b) 2. 3. 4. Name and location of court which entered the judgment of conviction under attack: Case Number:

Date of judgment of conviction: Length of sentence: Sentencing Judge:

Nature of offense or offenses for which you were convicted:

5.

Have you ever filed a post-conviction petition, application, or motion for collateral relief in any federal court related to this conviction and sentence? Yes ( ) No ( ) If "yes", how many times? (if more than one, complete 6 and 7 below as necessary) (a) Name of court: (b) Case number: (c) Nature of proceeding:

(d) Grounds raised (list all grounds; use extra pages if necessary):

(e) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (f) Result: (g) Date of result: 6. As to any second federal petition, application, or motion, give the same information: (a) Name of court: (b) Case number:
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(c) Nature of proceeding:

(d) Grounds raised (list all grounds; use extra pages if necessary):

(e) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (f) Result: (g) Date of result: 7. As to any third federal petition, application, or motion, give the same information: (a) Name of court: (b) Case number: (c) Nature of proceeding:

(d) Grounds raised (list all grounds; use extra pages if necessary):

(e) Did you receive an evidentiary hearing on your petition, application, or motion? Yes ( ) No ( ) (f) Result: (g) Date of result: 8. Did you appeal the result of any action taken on your federal petition, application, or motion? (Use extra pages to reflect additional petitions if necessary) (1) First petition, etc. No ( ) Yes ( ) Appeal No. (2) Second petition, etc. No ( ) Yes ( ) Appeal No. (3) Third petition, etc. No ( ) Yes ( ) Appeal No.

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9.

If you did not appeal from the adverse action on any petition, application, or motion, explain briefly why you did not:

10.

State concisely every ground on which you now claim that you are being held unlawfully. Summarize briefly the facts supporting each ground. (a) Ground one:

Supporting FACTS (tell your story briefly without citing cases or law):

Was this claim raised in a prior federal petition, application, or motion? Yes ( ) No ( ) Does this claim rely on a "new rule of law?" Yes ( ) No ( ) If "yes," state the new rule of law (give case name and citation):

Does this claim rely on "newly discovered evidence?" Yes ( ) No ( ) If "yes," briefly state the newly discovered evidence, and why it was not previously available to you:

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(b)

Ground two:

Supporting FACTS (tell your story briefly without citing cases or law):

Was this claim raised in a prior federal petition, application, or motion? Yes ( ) No ( ) Does this claim rely on a "new rule of law?" Yes ( ) No ( ) If "yes," state the new rule of law (give case name and citation):

Does this claim rely on "newly discovered evidence?" Yes ( ) No ( ) If "yes," briefly state the newly discovered evidence, and why it was not previously available to you:

[Additional grounds may be asserted on additional pages if necessary] 11. Do you have any motion or appeal now pending in any court as to the judgment now under attack? Yes ( ) No ( ) If yes, name of court: Case Number:

Wherefore, applicant prays that the United States Court of Appeals for the First Circuit grant an Order Authorizing the District Court to Consider Applicant's Second or Successive Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254.

Applicant's Signature I declare under Penalty of Perjury that my answers to all the questions in this Application are true and correct. Executed on [date] Applicant's Signature
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Proof of Service
Applicant must send a copy of this application and all attachments to the attorney general of the state in which applicant was convicted. I certify that on [date] attachments to at the following address: , I mailed a copy of this Application and all

Applicant's Signature

Pursuant to Fed.R.App.P. 25(c), "If an inmate confined in an institution files a notice of appeal . . ., the notice of appeal is timely filed if it is deposited in the institution's internal mail system on or before the last day of filing. Timely filing may be shown by a notarized statement or declaration (in compliance with 28 U.S.C. § 1746) setting forth the date of deposit and stating that firstclass postage has been prepaid."

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