Free Motion for Authorization to File a Second or Successive Unde - Federal


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United States Court of Appeals for the Sixth Circuit
INSTRUCTIONS FOR F ILING M OTION U NDER 28 U.S.C. 2244 FOR O RDER A UTHORIZING D ISTRICT C OURT TO C ONSIDER S ECOND OR S UCCESSIVE A PPLICATION FOR R ELIEF U NDER 28 U.S.C. 2254 OR 2255

Unless your prior application for relief was granted, or denied as premature or for failure to exhaust state court remedies, permission must be obtained from the Court of Appeals before a party can file a second or successive habeas corpus petition under 28 U.S.C. 2254 or motion to vacate under 28 U.S.C. 2255. 1. Use the attached form to file a MOTION UNDER 28 U.S.C. 2244 TO SEEK AUTHORIZATION TO FILE A SECOND OR SUCCESSIVE APPLICATION FOR RELIEF UNDER 28 U.S.C. 2254 OR 2255. 2. Answer completely all the questions on the attached form. Your failure to provide complete answers may result in the court denying your motion. 3. You must attach to your motion copies of the following documents: A. The 2254 or 2255 application that you want to file in the district court if the Court of Appeals grants your motion. B. All 2254 or 2255 applications that you previously filed in any federal court challenging the judgment of conviction or sentence that you now want to challenge. C. All magistrate judges' reports and recommendations issued in all previous 2254 or 2255 applications that challenged the judgment of conviction or sentence that you now want to challenge. 4. You must sign the motion in three places at the end of page 4. Your failure to sign the motion or to complete the Proof of Service may result in the court denying your motion. This form and its attachments must be mailed to: Clerk's Office Room 540, Potter Stewart U.S. Courthouse 100 E. Fifth Street Cincinnati, OH 45202 5. If your motion seeks relief under 28 U.S.C. 2254, you must serve a copy of the motion and all documents attached to it on the attorney general of the state in which you are confined. Your failure to serve the attorney general may result in the court denying your motion. 6. If your motion seeks relief under 28 U.S.C. 2255, you must serve a copy of the motion and all documents attached to it on the United States Attorney for the federal judicial district in which you were convicted. Your failure to serve the United States Attorney may result in the court denying your motion.

MOTION UNDER 28 U.S.C. 2244 FOR ORDER AUTHORIZING DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE APPLICATION FOR RELIEF UNDER 28 U.S.C. 2254 OR 2255

United States Court of Appeals for the Sixth Circuit
Name of Movant Prisoner No. Case Number (leave blank)

Place of Confinement (List complete mailing address)

IN RE:

, MOVANT

1.

Name and location of court which entered the judgment of conviction from which relief is sought:

2. 3. 5. 6.

Parties' Names: Docket Number: Length of sentence: Nature of offense(s) involved (all counts):

vs. 4. Date of judgment of conviction:

7.

What was your plea? (Check one)

G

Not Guilty

G Guilty G G G
Jury

G Nolo Contendere G Judge only G No G
No

8.

If you pleaded not guilty, what kind of trial did you have? Check one)

9.

Did you testify at your trial? (Check one)

Yes

10. Did you appeal from the judgment of conviction (Check one) 11. If you did appeal, what was the Name of court appealed to: Parties' names on appeal: Docket number of appeal: vs.

Yes

Date of decision:

Result of appeal:

12. Other than a direct appeal from the judgment of conviction and sentence, have you filed any other petitions, applications for relief, or other motions regarding this judgment in any federal court? 13. If you answered "yes" to question 12, answer the following questions: A. F IRS T P E TITIO N , A P PLIC ATIO N , O R
M O TIO N

G Yes

G No

(1) In what court did you file the petition, application, or motion? (2) What were the parties' names? (3) What was the docket number of the case? (4) What relief did you seek? (5) What grounds for relief did you state in your petition, application, or motion? vs.

(6) Did the court hold an evidentiary hearing on your petition, application or motion?

G

Yes

G

No

(7) What was the result?

G Relief granted G Relief denied for
failure to exhaust

G Relief denied on the merits G Relief denied for procedural default G Relief denied as premature

G Case transferred to Court of Appeals as request
to file second/successive 2254/2255 application for relief (8) Date of court's decision: [NOTE: You must attach copies of all prior orders granting or denying relief under 2254 or 2255, even if you believe that you do not need this court's permission to file your current application.] B. S E CO N D P E TITIO N , A P PLIC ATIO N , O R M O TIO N (1) In what court did you file the petition, application, or motion? (2) What were the parties' names? (3) What was the docket number of the case? (4) What relief did you seek? (5) What grounds for relief did you state in your petition, application, or motion? vs.

(6) Did the court hold an evidentiary hearing on your petition, application or motion?

G

Yes

G No

(7) What was the result?

G Relief granted G Relief denied for
failure to exhaust

G Relief denied on the merits G Relief denied for procedural default G Relief denied as premature

G Case transferred to Court of Appeals as request
to file second/successive 2254/2255 application for relief (8) Date of court's decision: [NOTE: You must attach copies of all prior orders granting or denying relief under 2254 or 2255, even if you believe that you do not need this court's permission to file your current application.] C. T H IR D A ND S UB SEQ UE NT P E TITIO N S , A P PLIC ATIO N S , O R M O TIO N S For any third or subsequent petition, application, or motion, attach a separate page providing the information required in items (1) through (8) above for first and second petitions, applications, or motions. D. P R IO R A P P E LLA TE R E V IE W ( S ) Did you appeal any order regarding your petitions, applications, or motions to a federal court of appeals having jurisdiction over your case? If so, list the docket numbers and dates of final disposition for all subsequent petitions, applications, or motions filed in a federal court of appeals. First petition, application, or motion Second petition, application, or motion Subsequent petitions, applications or motions Subsequent petitions, applications or motions Subsequent petitions, applications or motions Subsequent petitions, applications or motions

G Yes G Yes G Yes G Yes G Yes G Yes

Appeal No. Appeal No. Appeal No. Appeal No. Appeal No. Appeal No.

Date Date Date Date Date Date

G No G No G No G No G No G No

If you did not appeal from the denial of relief on any of your prior petitions, applications, or motions, state which denials you did not appeal and explain why you did not.

14. Did you present any of the claims in this application in any previous petition, application, or motion for relief under 28 U.S.C. 2254 or 2255? (Check one)

G Yes

G No

15. If your answer to question 14 is "yes," give the docket number(s) and court(s) in which such claims were raised and state the basis on which relief was denied.

16. If your answer to question 14 is "No," answer the following questions: A. State the claims which you did not present in any previous petition, application, or motion for relief under 28 U.S.C. 2254 or 2255:

B. State the reasons explaining why you did not present the above claims in any previous petition, application or motion for relief under 28 U.S.C. 2254 or 2255:*

*NOTE: This Court will grant you authority to file in the district court only if you show that you could not have presented your present claims in your previous 2254 or 2255 application because . . . A. (For 2255 motions only) the claims involve "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [you] guilty"; or, B. (For 2254 petitions only) "the factual predicate for the claim could not have been discovered previously through the exercise of due diligence" and "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 [you] guilty of the offense"; or, C. (For both 2254 and 2255 applicants) the claims involve "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court [of the United States], that was previously unavailable." Movant prays that the United States Court of Appeals for the Sixth Circuit issue an Order Authorizing the District Court to Consider Movant's Second or Successive Application for Relief Under 28 U.S.C. 2254 or 2255.

Movant's Signature I declare under Penalty of Perjury that my answers to all questions in this Motion are true and correct. Executed on [date]

Movant's Signature

P RO O F

OF

S E RV IC E

A copy of this motion and all attachments must be sent to the state attorney general ( 2254 cases) or the United States Attorney for the United States judicial district in which you were convicted ( 2255 cases). I certify that on [date] to at the following address: I mailed a copy of this motion and all attachments

Movant's Signature