bluemama
12-21-2004, 10:13 PM
Good evening, and I wanted to share with you all some important information. With all of the hype and discussion about Blakely, Fanfan, Booker and the excitement it's generating...let me bring us all down a notch to the reality of what all is REQUIRED by the court of appeals (FEDERAL) before the "application for leave to file a second or successive motion to vacate, set aside or correct sentence (28 USC 2255) is filed.
First off, you must find your circuit court of appeals. This would be the US District Court of Appeals for the area in which your incarcerated loved one was CONVICTED...not where they're serving. You can do this by going to:
http://www.fedcourts.com/state_federal.html
Secondly, you must satisfy a very strict set of rules and requirement (differing slightly from circuit to circuit courts). I will break down what my son's court (11th circuit court, serving Georgia, Florida and Alabama) requires:
1) Must be handwritten or typed and signed by the applicant(the incarcerated person, the prisoner)
2) All questions must be answered on the form (keywords - on the form)
3) blah blah blah - must be on 8 x 11 inch paper - NOT acceptable on legal sized paper
4) USE THIS FORM except for capital cases - you must use the form the circuit court provides - no exceptions
5) NO ADDITIONAL PAGES ..Don't submit petitions, or motions, briefs, arguments..except (once again!) on capital cases
6) THIS ONE IS VERY IMPORTANT: it deals with applican'ts burden to make a prima facie showing that he satisfies the following two conditions (which basically means that you have to PROVE that you qualify for a "rehearing" by directly meeting ONE of the TWO , or BOTH of the following two requirements:
a) newly discovered evidence if proven and viewed in light of the evidence as a whole would be able to establish by clear and convincing evidence that no reasonable factfinder would have found the movant(defendant) guilty of the offense OR
b) a new rule of constitutional law, made RETROACTIVE to cases on collateral review by the SUPREME COURT, that was previously unavailable.
So, basically - you have to meet one or both of those requirements - NEW EVIDENCE or a NEW LAW that's been decided by the Supreme Court to be retroactive.
When the application is filled out and signed, BY THE PRISONER , then the original and THREE copies get mailed to the address on the form.
It's not something your loved one can just fill in and mail off. It takes some basic understanding of the requirements and a basic understanding of what to answer and how to fill out a form properly.
My suggestion is for those of you trying to help your loved ones to go over to the web site posted above and download and read some of the forms and instructions. Print it out, send it over to your loved one and let them make the decisions.
Hope this helps!
Best of luck to all of us!
Keep the faith!
Stay focused!
mary
First off, you must find your circuit court of appeals. This would be the US District Court of Appeals for the area in which your incarcerated loved one was CONVICTED...not where they're serving. You can do this by going to:
http://www.fedcourts.com/state_federal.html
Secondly, you must satisfy a very strict set of rules and requirement (differing slightly from circuit to circuit courts). I will break down what my son's court (11th circuit court, serving Georgia, Florida and Alabama) requires:
1) Must be handwritten or typed and signed by the applicant(the incarcerated person, the prisoner)
2) All questions must be answered on the form (keywords - on the form)
3) blah blah blah - must be on 8 x 11 inch paper - NOT acceptable on legal sized paper
4) USE THIS FORM except for capital cases - you must use the form the circuit court provides - no exceptions
5) NO ADDITIONAL PAGES ..Don't submit petitions, or motions, briefs, arguments..except (once again!) on capital cases
6) THIS ONE IS VERY IMPORTANT: it deals with applican'ts burden to make a prima facie showing that he satisfies the following two conditions (which basically means that you have to PROVE that you qualify for a "rehearing" by directly meeting ONE of the TWO , or BOTH of the following two requirements:
a) newly discovered evidence if proven and viewed in light of the evidence as a whole would be able to establish by clear and convincing evidence that no reasonable factfinder would have found the movant(defendant) guilty of the offense OR
b) a new rule of constitutional law, made RETROACTIVE to cases on collateral review by the SUPREME COURT, that was previously unavailable.
So, basically - you have to meet one or both of those requirements - NEW EVIDENCE or a NEW LAW that's been decided by the Supreme Court to be retroactive.
When the application is filled out and signed, BY THE PRISONER , then the original and THREE copies get mailed to the address on the form.
It's not something your loved one can just fill in and mail off. It takes some basic understanding of the requirements and a basic understanding of what to answer and how to fill out a form properly.
My suggestion is for those of you trying to help your loved ones to go over to the web site posted above and download and read some of the forms and instructions. Print it out, send it over to your loved one and let them make the decisions.
Hope this helps!
Best of luck to all of us!
Keep the faith!
Stay focused!
mary