Free AO 241 - Petition for Relief from a Conviction or Sentence by a Person in State Custody - Georgia

OAO 241 (Rev. 10/07)

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Petition for Relief From a Conviction or Sentence By a Person in State Custody
(Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus)

Instructions 1. To use this form, you must be a person who is currently serving a sentence under a judgment against you in a state court. You are asking for relief from the conviction or the sentence. This form is your petition for relief. You may also use this form to challenge a state judgment that imposed a sentence to be served in the future, but you must fill in the name of the state where the judgment was entered. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file a motion under 28 U.S.C. § 2255 in the federal court that entered the judgment. Make sure the form is typed or neatly written. You must tell the truth and sign the form. If you make a false statement of a material fact, you may be prosecuted for perjury. Answer all the questions. You do not need to cite law. You may submit additional pages if necessary. If you do not fill out the form properly, you will be asked to submit additional or correct information. If you want to submit a brief or arguments, you must submit them in a separate memorandum. You must pay a fee of $5. If the fee is paid, your petition will be filed. If you cannot pay the fee, you may ask to proceed in forma pauperis (as a poor person). To do that, you must fill out the last page of this form. Also, you must submit a certificate signed by an officer at the institution where you are confined showing the amount of money that the institution is holding for you. 7. In this petition, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different court (either in the same state or in different states), you must file a separate petition. When you have completed the form, send the original and two copies to the Clerk of the United States District Court at this address: Clerk, United States District Court Middle District of Georgia PO Box 128 Macon, Georgia 31202 9. CAUTION: You must include in this petition all the grounds for relief from the conviction or sentence that you challenge. And you must state the facts that support each ground. If you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date. CAPITAL CASES: If you are under a sentence of death, you are entitled to the assistance of counsel and should request the appointment of counsel.

2.

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PETITION UNDER 28 U.S.C. § 2254 FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY United States District Court Name (under which you were convicted): District: Docket or Case No.:

Place of Confinement :

Prisoner No.:

Petitioner (include the name under which you were convicted) v.

Respondent (authorized person having custody of petitioner)

The Attorney General of the State of

PETITION

1.

(a) Name and location of court that entered the judgment of conviction you are challenging:

(b) Criminal docket or case number (if you know): 2. (a) Date of the judgment of conviction (if you know): (b) Date of sentencing: 3. 4. 5. Length of sentence: In this case, were you convicted on more than one count or of more than one crime? Identify all crimes of which you were convicted and sentenced in this case:

' Yes

'

No

6.

(a) What was your plea? (Check one)

' (1) ' (2)

Not guilty Guilty

' '

(3) (4)

Nolo contendere (no contest) Insanity plea

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(b) If you entered a guilty plea to one count or charge and a not guilty plea to another count or charge, what did you plead guilty to and what did you plead not guilty to?

(c) If you went to trial, what kind of trial did you have? (Check one)

'
7.

Jury

' Judge only

Did you testify at a pretrial hearing, trial, or a post-trial hearing?

'
8.

Yes

' No

Did you appeal from the judgment of conviction?

'
9.

Yes

' No

If you did appeal, answer the following: (a) Name of court: (b) Docket or case number (if you know): (c) Result: (d) Date of result (if you know): (e) Citation to the case (if you know): (f) Grounds raised:

(g) Did you seek further review by a higher state court? If yes, answer the following: (1) Name of court: (2) Docket or case number (if you know): (3) Result:

' Yes

' No

(4) Date of result (if you know):

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(5) Citation to the case (if you know): (6) Grounds raised:

(h) Did you file a petition for certiorari in the United States Supreme Court? If yes, answer the following: (1) Docket or case number (if you know): (2) Result:

' Yes

'

No

(3) Date of result (if you know): (4) Citation to the case (if you know): 10. Other than the direct appeals listed above, have you previously filed any other petitions, applications, or motions concerning this judgment of conviction in any state court? 11.

' Yes

' No

If your answer to Question 10 was "Yes," give the following information: (a) (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

'

Yes

' No

(7) Result: (8) Date of result (if you know):

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(b) If you filed any second petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

'

Yes

' No

(7) Result: (8) Date of result (if you know): (c) If you filed any third petition, application, or motion, give the same information: (1) Name of court: (2) Docket or case number (if you know): (3) Date of filing (if you know): (4) Nature of the proceeding: (5) Grounds raised:

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(6) Did you receive a hearing where evidence was given on your petition, application, or motion?

'

Yes

' No

(7) Result: (8) Date of result (if you know): (d) Did you appeal to the highest state court having jurisdiction over the action taken on your petition, application, or motion? (1) First petition: (2) Second petition: (3) Third petition:

' Yes ' Yes ' Yes

' No ' No ' No

(e) If you did not appeal to the highest state court having jurisdiction, explain why you did not:

12.

For this petition, state every ground on which you claim that you are being held in violation of the Constitution, laws, or treaties of the United States. Attach additional pages if you have more than four grounds. State the facts supporting each ground. CAUTION: To proceed in the federal court, you must ordinarily first exhaust (use up) your available state-court remedies on each ground on which you request action by the federal court. Also, if you fail to set forth all the grounds in this petition, you may be barred from presenting additional grounds at a later date.

GROUND ONE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground One, explain why:

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(c)

Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? (2) If you did not raise this issue in your direct appeal, explain why:

' Yes

'

No

(d) Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

'

Yes

' No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? (4) Did you appeal from the denial of your motion or petition? (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

' Yes ' Yes ' Yes

' ' '

No No No

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

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(e) Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground One:

GROUND TWO:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Two, explain why:

(c)

Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? (2) If you did not raise this issue in your direct appeal, explain why:

' Yes

'

No

(d)

Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

'

Yes

' No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision:

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Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? (4) Did you appeal from the denial of your motion or petition? (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

' Yes ' Yes ' Yes

' ' '

No No No

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you : have used to exhaust your state remedies on Ground Two

GROUND THREE:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

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(b) If you did not exhaust your state remedies on Ground Three, explain why?

(c)

Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? (2) If you did not raise this issue in your direct appeal, explain why:

' Yes

' No

(d)

Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

'

Yes

' No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition: Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? (4) Did you appeal from the denial of your motion or petition? (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

' Yes ' Yes ' Yes

' No ' No ' No

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

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(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Three:

GROUND FOUR:

(a) Supporting facts (Do not argue or cite law. Just state the specific facts that support your claim.):

(b) If you did not exhaust your state remedies on Ground Four, explain why:

(c)

Direct Appeal of Ground Four: (1) If you appealed from the judgment of conviction, did you raise this issue? (2) If you did not raise this issue in your direct appeal, explain why:

' Yes

' No

(d)

Post-Conviction Proceedings: (1) Did you raise this issue through a post-conviction motion or petition for habeas corpus in a state trial court?

'

Yes

' No

(2) If your answer to Question (d)(1) is "Yes," state: Type of motion or petition:

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Name and location of the court where the motion or petition was filed:

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(3) Did you receive a hearing on your motion or petition? (4) Did you appeal from the denial of your motion or petition? (5) If your answer to Question (d)(4) is "Yes," did you raise this issue in the appeal? (6) If your answer to Question (d)(4) is "Yes," state: Name and location of the court where the appeal was filed:

' Yes ' Yes ' Yes

' No ' No ' No

Docket or case number (if you know): Date of the court's decision: Result (attach a copy of the court's opinion or order, if available):

(7) If your answer to Question (d)(4) or Question (d)(5) is "No," explain why you did not raise this issue:

(e)

Other Remedies: Describe any other procedures (such as habeas corpus, administrative remedies, etc.) that you have used to exhaust your state remedies on Ground Four:

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13.

Please answer these additional questions about the petition you are filing: (a) Have all grounds for relief that you have raised in this petition been presented to the highest state court having jurisdiction?

' Yes

' No

If your answer is "No," state which grounds have not been so presented and give your reason(s) for not presenting them:

(b)

Is there any ground in this petition that has not been presented in some state or federal court? If so, ground or grounds have not been presented, and state your reasons for not presenting them:

14.

Have you previously filed any type of petition, application, or motion in a federal court regarding the conviction that you challenge in this petition?

' Yes

' No

If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, the issues raised, the date of the court's decision, and the result for each petition, application, or motion filed. Attach a copy of any court opinion or order, if available.

15.

Do you have any petition or appeal now pending (filed and not decided yet) in any court, either state or federal, for the judgment you are challenging?

' Yes

' No

If "Yes," state the name and location of the court, the docket or case number, the type of proceeding, and the raised.

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16.

Give the name and address, if you know, of each attorney who represented you in the following stages of the judgment you are challenging: (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 ruling against you in a post-conviction proceeding:

17.

Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging?

' Yes

'

No

(a) If so, give name and location of court that imposed the other sentence you will serve in the future:

(b) Give the date the other sentence was imposed: (c) Give the length of the other sentence: (d) Have you filed, or do you plan to file, any petition that challenges the judgment or sentence to be served in the future? 18.

' Yes

'

No

TIMELINESS OF PETITION: If your judgment of conviction became final over one year ago, you must explain the one-year statute of limitations as contained in 28 U.S.C. § 2244(d) does not bar your petition.*

Tab to continue "TIMELINESS OF PETITION" on next page.

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* The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") as contained in 28 U.S.C. part that: (1)

§ 2244(d) provides in

A one-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of (A) (B) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action; the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(C)

(D)

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(2)

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.

Therefore, petitioner asks that the Court grant the following relief:

or any other relief to which petitioner may be entitled.

Signature of Attorney (if any)

I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct and that this Petition for Writ of Habeas Corpus was placed in the prison mailing system on (month, date, year).

Executed (signed) on

(date).

Signature of Petitioner If the person signing is not petitioner, state relationship to petitioner and explain why petitioner is not signing this petition.

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA ____________________DIVISION : : : : : : : : : : : : : : :

___________________________________ (Plaintiff/Petitioner) vs. ___________________________________ ___________________________________ ___________________________________ ___________________________________
(Defendant(s)/Respondent(s))

CIVIL ACTION NO: MOTION TO PROCEED WITHOUT PREPAYMENT OF FEES AND AFFIDAVIT

I, , being first duly sworn, depose and say that I am the plaintiff in the aboveentitled case. As such, I motion the Court to be allowed to proceed without the requirement to pre-pay fees or costs or give security due to my poverty which results in my inability to pay the costs of said proceeding or to give security. For this reason, I believe I am entitled to redress. I further declare that the responses which I make to the questions and instructions below are true. 1. Are you presently employed? 9 Yes 9 No

a. If the answer is yes, state the amount of your salary or wages per month and give the name and address of your employer. ______________________________________________________________________________________ ______________________________________________________________________________________ b. If the answer is no, state the date you last worked and the amount of salary or wages per month which you received. ______________________________________________________________________________________ ______________________________________________________________________________________ 2. Have you received within the past TWELVE (12) months any money from any of the following sources? a. Business, profession, or form of self employment? 9 Yes 9 No b. Pension, annuities, or life insurance payments? 9 Yes 9 No c. Rent payments, interest, or dividends? 9 Yes 9 No d. Gifts or inheritances? 9 Yes 9 No e. Any other sources? 9 Yes 9 No If the answer to any of the above is yes, describe each source of money received and state the amount received from each during the past TWELVE (12) MONTHS.

______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________ 3. Do you have any cash, or do you have money in a checking, savings, or prison account? (You must attach a
certificate from prison authorities if you have money in a prison account).

9 Yes 9 No

If yes, how much do you have? $_________________________________________

4. Do you own any real estate (house and/or property), stocks, bonds, notes, auto-mobiles, or other valuable property, excluding ordinary household goods and furnishings? 9 Yes 9 No a. If the answer is yes, describe the property and state its approximate value. ______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________ b. If the answer is yes, list any mortgages, liens, or loans against the property and state the amount you owe. ______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________ 5. List the persons who are dependent upon you for their support. State your relationship to those persons and indicate how much you contribute toward their support. ______________________________________________________________________________________ ______________________________________________________________________________________ ______________________________________________________________________________________

Signed this ___________ day of __________________________, 20 ___________.

_______________________________________________ (Signature of Plaintiff/Petitioner)

DECLARATION UNDER PENALTY OF PERJURY
YOU MUST DECLARE UNDER PENALTY OF PERJURY THAT THE ANSWERS YOU HAVE GIVEN IN THE ATTACHED MOTION/AFFIDAVIT FORM ARE TRUE AND CORRECT. GIVING A FALSE ANSWER OR FALSE INFORMATION IN RESPONSE TO ANY QUESTION WILL SUBJECT YOU TO FEDERAL PERJURY CHARGES. 18 U.S.C.§ 1621 PROVIDES AS FOLLOWS: Whoever ... (2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true; is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years or both. This section is applicable whether the statement or subscription is made within or without the United States. Understanding the above, I declare under penalty of perjury that the foregoing answers and information provided by me in support of my request to proceed in forma pauperis are true and correct. Executed this _________ day of , 20_____.

___________________________________________ (Signature of Plaintiff/Petitioner)

RETURN TO: GREGORY J. LEONARD, CLERK UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF GEORGIA P. O. BOX 128 MACON, GEORGIA 31202

RE:

_____________________________
(Plaintiff/Petitioner)

_____________________________ (Prisoner Number)

ACCOUNT CERTIFICATION
I hereby certify that the plaintiff/petitioner named herein above has an average monthly balance for the last six (6) months of $ credit at the in account to his/her institution where he/she is confined. I

further certify that the plaintiff/petitioner likewise has the following securities to his/her credit according to the records of this institution: _____________________________________________ _______________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ (If not confined for a full six (6) months, specify the number of months confined, then compute the average monthly balance based on that number of months): _________________________________ _________________________________________________________________________________ _________________________________________________________________________________ _________________________________________________________________________________ PRESENT BALANCE ON HAND IN PRISONER ACCOUNT: $_______________________

Dated this _____________day of __________________________, 20________. _____________________________________
(Authorized Officer of Institution)

_____________________________________
(Title)

PLEASE ATTACH A COMPUTER PRINTOUT OF THE ACCOUNT IF AVAILABLE