Free Motion to Vacate - Michigan



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Excerpt: (Rev. 12/2004) Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody (Motion Under 28 U.S.C. 2255) Instructions 1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief fro m the conviction or the sentence. T his form is your motion for r
(Rev. 12/2004)

Motion to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody
(Motion Under 28 U.S.C. 2255) Instructions 1. To use this form, you must be a person who is serving a sentence under a judgment against you in a federal court. You are asking for relief fro m the conviction or the sentence. T his form is your motion for relief. You must file the form in the United States District Court that entered the judgment that you are challenging. If you want to challenge a federal judgment that imposed a sentence to be served in the future, you should file the motion in the federal court that entered tha t judgm ent. 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 m ay be p rosec uted fo r 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 add itional or corrected information. If you want to sub mit a brief or argum ents, you must submit them in a separate memorandum. No fee is required with this motion. If you cannot pay for transcripts, appeal or other costs connected with this motion, you may ask to proceed in form a pa upe ris (as a poor person). To do that, you must fill out the enclosed AO 240 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. In this motion, you may challenge the judgment entered by only one court. If you want to challenge a judgment entered by a different judge (either in the same district or in a different district), you must file a separate motion. W hen you have completed the form, send the original and two copies to the Clerk of the United States District Court at one of the following add resses:

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Ronald C. Weston, Sr. Clerk, U.S. District Court 399 Federal Bldg. 110 Michigan St., NW Grand Rapids, MI 49503 Ronald C. Weston, Sr. Clerk, U.S. District Court 229 Federal Bldg. P.O. Box 698 Marquette, MI 49855

Ronald C. Weston, Sr. Clerk, U.S. District Court B-35 Federal Bldg. 410 W. Michigan Ave. Kalamazoo, MI 49007 Ronald C. Weston, Sr. Clerk, U.S. District Court 113 Federal Bldg. 315 W. Allegan Lansing, MI 48933

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CAUTION: You m ust includ e in th is motion 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 motion, you may be barred from presenting additional grounds at a later date.

(Rev. 12/2004)

MOTION UNDER 28 U.S.C. 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

United States District Court
Name (under which you we re convicted ):

District Do cket or Case No.:

Place of Confinement: UN ITED ST AT ES OF AM ER ICA v.

Priso ner N o.: Movant (include name under which convicted)

MOTION 1. (a) N ame and lo cation of court that entered the judgment of conviction you are challenging:

(b) Criminal d ocket or ca se num ber: 2. (a) D ate of the judgment of conviction: (b) Date of sentencing: 3. Identify all counts and crimes for which you we re convicted and se ntence d in this case:

4.

Length of sentence for eac h count or crime for which you we re convicted in this case:

5.

(a) W hat was your plea? No t guilty Guilty No lo contendere (no contest)

9 9 9

(b) If you entered a guilty plea to one co unt or charge, and a not guilty plea to ano ther count or charge, give details:

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6.

If you went to trial, what kind of trial did you have? (Check one) (a) Jury 9 (b) Judge only 9 Did you testify at the trial? Yes

7. 8. 9.

9 No 9 9 No 9

Did you appe al from the judgment of conviction? Y es If you did appeal, answer the following: (a) Date you filed : (b) Name o f court: (c) Do cket or case numb er: (d) Result: (e) Date of result: (f) Ground s raised:

(g) Did you file a petition for certiorari in the United States Supreme Court? Yes If "Yes," answer the following: (1) Date you filed : (2) Do cket or case numb er: (3) Result: (4) Date of result: (5) G rounds raised:

9 No 9

10. Other than the direct appeals listed above, have you previously filed any other mo tions, petitions, or applications concerning this judg ment of conviction in any court? 11. If your answer to Question 10 was "Y es," give the follo wing informatio n: Yes -2-

9 No 9

(a) (1) Date you filed : (2) Name o f court: (3) Do cket or case numb er (if you know): (4) Date of filing (if you know ): (5) Nature of the proceeding: (6) Gro unds raised:

(7) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes (8) R esult: (9) D ate of result: (b) If you filed any second motion, petition, or application, give the same information: (1) Date you filed : (2) Name o f court: (3) Do cket or case numb er (if you know): (4) Date of filing (if you know ): (5) Nature of the proceeding: (6) Gro unds raised:

9 No 9

(7) Did you receive a hearing where evidence was given on your motion, petition, or application? Yes (8) R esult: (9) D ate of result :

9 No 9

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(c) Did you appeal to a federal appellate court having jurisdiction over the action taken on your motion, petition, or application? (1) First petition: Yes

9 No 9 9 No 9

(2) Second petition: Yes

(d) If you did not appeal from the actio n on any motion, petition, or application, explain briefly why you did not:

12. For this motion, 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. GROUND ONE:

(a) Suppo rting FA CT S (D o not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes (2) If you did not raise this issue in your d irect ap peal, explain why:

9 No 9

(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction mo tion, petition or app lication? Ye s (2) If your answer to Question (c)(1) is "Yes," state: Typ e of motion or pe tition: Date motion was filed:

9 No 9

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Name and location of the co urt where the m otion or pe tition was filed:

Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available):

Date of result: (3) Did you receive a hea ring on your m otion? Y es

9 No 9 9 No 9 9 No 9

(4) Did you appe al from the denial of your motion, petition or application? Yes

(5) If your answer to Q uestion (c)(4) is "Yes," did you raise this issue in the app eal? Y es If yes, answer the following: Date you filed : Name o f court where the app eal was filed : Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available) :

Date of result:

G RO U ND TW O:

(a) Suppo rting FA CT S (D o not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground Two: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes

9 No 9

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(2) If you did not raise this issue in your d irect ap peal, explain why:

(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction mo tion, petition or app lication? Ye s (2) If your answer to Question (c)(1) is "Yes," state: Typ e of motion or pe tition: Date motion was filed: Name and location of the co urt where the m otion or pe tition was filed:

9 No 9

Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available):

Date of result: (3) Did you receive a hea ring on your m otion? Y es

9 No 9 9 No 9 9 No 9

(4) Did you appe al from the denial of your motion, petition or application? Yes

(5) If your answer to Q uestion (c)(4) is "Yes," did you raise this issue in the app eal? Y es If yes, answer the following: Date you filed : Name o f court where the app eal was filed : Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available) :

Date of result: GROUN D THREE :

(a) Suppo rting FA CT S (D o not argue or cite law. Just state the specific facts that support your claim.):

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(b) Direct Appeal of Ground Three: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes (2) If you did not raise this issue in your d irect ap peal, explain why:

9 No 9

(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction mo tion, petition or app lication? Ye s (2) If your answer to Question (c)(1) is "Yes," state: Typ e of motion or pe tition: Date motion was filed: Name and location of the co urt where the m otion or pe tition was filed:

9 No 9

Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available):

Date of result: (3) Did you receive a hea ring on your m otion? Y es

9 No 9 9 No 9 9 No 9

(4) Did you appe al from the denial of your motion, petition or application? Yes

(5) If your answer to Q uestion (c)(4) is "Yes," did you raise this issue in the app eal? Y es If yes, answer the following: Date you filed : Name o f court where the app eal was filed : Do cket or case numb er:

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Result (attach a copy of the co urt's opinion and order, if available) :

Date of result:

GROUND FOUR:

(a) Suppo rting FA CT S (D o not argue or cite law. Just state the specific facts that support your claim.):

(b) Direct Appeal of Ground One: (1) If you appealed from the judgment of conviction, did you raise this issue? Yes (2) If you did not raise this issue in your d irect ap peal, explain why:

9 No 9

(c) Post-Conviction Proceedings: (1) Did you raise this issue in any post-conviction mo tion, petition or app lication? Ye s (2) If your answer to Question (c)(1) is "Yes," state: Typ e of motion or pe tition: Date motion was filed: Name and location of the co urt where the m otion or pe tition was filed:

9 No 9

Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available):

Date of result: -8-

(3) Did you receive a hea ring on your m otion? Y es

9 No 9 9 No 9 9 No 9

(4) Did you appe al from the denial of your motion, petition or application? Yes

(5) If your answer to Q uestion (c)(4) is "Yes," did you raise this issue in the app eal? Y es If yes, answer the following: Date you filed : Name o f court where the app eal was filed : Do cket or case numb er: Result (attach a copy of the co urt's opinion and order, if available) :

Date of result: 13. Is there any ground in this motion that you have not previously presented in some federal court? If so, state which ground or grounds have not been presented and your reasons for not presenting them:

14. Do you have any motion, petition, or appeal now pending (filed and not decided yet) in any court for the judgment you are challenging? Yes 9 No 9 If "Yes," state the date of filing, the name and location of the court, the docket or case number, the type of proceeding, and the issues raised.

15. Give the name and address, if known, of each attorney who represented you in the following stages of the judgment you are challenging: (a) At preliminary hearing:

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(b) At arra ignme nt and plea:

(c) At trial:

(d) At sentencing:

(e) On appeal:

(f) In any p ost-conviction proceed ing:

(g) On appeal from any ruling against yo u in a po st-conviction proceeding:

16. Do you have any future sentence to serve after you complete the sentence for the judgment that you are challenging? Yes 9 No 9 (a) If so, give name and lo cation of court that imp osed the othe r sentence you will serve in the future:

(b) Give the date the other sentence was imposed: (c) Give the length of the o ther sentence: (d) Have you filed, or do you plan to file, any motion, petition, or application that challenges the jud gment or sentence to be served in the future? Yes 9 No 9 18. TIMELINESS OF M OT ION : If your judgment of conviction became final over one year ago, you must explain why the one-year statute of limitations as co ntained in 28 U .S.C. 225 5 do es not bar your mo tion.*

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* The A ntiterrorism and E ffective D eath P enalty Act of 1996 (" AEDPA") as contained in 28 U.S.C. 2255, paragraph 6, provides in part tha t: A one-year period of limitation shall apply to a mo tion und er this section. T he limitatio n period shall run from the latest of-(1) the date o n which the judgment of conviction beca me final; (2) the date on which the impedime nt to ma king a m otion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making such a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has b een ne wly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could hav e been d iscovered through the exercise of due diligence. Therefore, movant asks that the Court grant him or her the relief to which he or she may be entitled in this proceeding.

I declare under penalty of perjury that the foregoing is true and correct and that this Motion Under 2255 was placed in the prison mailing system on (month, date, year).

Signature of Movant

Date

Signature of A ttorney (if any) If the person signing is not movant or an attorney, state relationship to movant and explain why movant is not signing this petition.

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