COURT COUNTY .OF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... .. : Index No. : Calendar No. Instructions for § 2254 PETITIONER'S RESPONSE AS TO WHY THE PETITION : SHOULD NOT BE Plaintiff(s) BY 28 U.S.C. JUDICIAL SUBPOENA BARRED § 2244(d)(1) -against- : 1. A petition for writ of habeas corpus must be dismissed if the judge finds that it is untimely. 28 : U.S.C. §2244(d)(1) establishes a one-year period of limitations for an application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court. The limitation period shall run from the : latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; Defendant(s) on which the impediment to filing an application (B) the date : . . . . . .by .State . action . in. .violation. . . . the. .Constitution. .or . laws of the United States is removed, if the . . . . . . . . . . . . . . . . . . of . . . . . . . . . . . . . . . . created applicant was prevented from filing by such State action; (C) 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 madeSTATE OF NEW YORKto cases on collateral review; or (D) the date on which the THE PEOPLE OF THE retroactively applicable factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). TO However, “[t]he time during which a properly filed application for State post-conviction or other 2. collateral review ... is pending shall not be counted toward any period of limitation under this section. 28 GREETINGS: U.S.C. § 2244(d)(2). WE COMMAND YOU, that all business and excuses being laid aside, you and each of you attend before 3. the Honorable Your petition for habeas corpus has been the found to be subject to dismissal under 28 U.S.C. , at Court §2244(d)(1) and Rule 9 of the Rules Governing Section 2254 Cases in the United States District Courts for located at County of the reasons set forth inon the in room , the Decision and Order accompanying, this form. o'clock in the day of , 20 at noon, and at any recessed or adjourned date, to testify and give evidence as a witness in this action on the part of the 4. This form has been sent so that you may explain why your petition is not untimely as noted in the Decision and Order. You must fill out this form and return it to the Court by the deadline specified in the Decision and Order. Failure to do so will result in the automatic dismissal of your petition. Petitioner Your failure to comply with this subpoena is punishable as a contempt of court and will make you liable to should be sure to include in the Response specific and detailed information addressing all of the Court’s the party on whose behalf this subpoena was issued for a maximum penalty of $50 and all damages sustained as a concerns; petitioner should also include all pertinent dates when any collateral attacks (such as NY CPL 440 result of your failure to comply. motions) were filed and when each was finally determined, if petitioner had filed any collateral attacks. 5. Witness, Honorable Court in County, , one of the Justices of the When you have fully completed the following two pages, the original must be mailed to: day of , 20 Clerk of the United States District Court 304 U.S. Courthouse (Attorney must sign above and type name below) 68 Court Street Buffalo, New York 14202. Attorney(s) for This response must be legibly handwritten or typewritten and signed by the petitioner under penalty 6. 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. Office and on which you 7. Additional pages are not permitted except with respect to the facts P.O. Address rely in item 3 in the response. Do not cite case law unless there has been a change in the law since the judgment you are attacking was rendered. Telephone No.: Facsimile No.: E-Mail Address: Mobile Tel. No.: American LegalNet, Inc. www.USCourtForms.com COURT COUNTY .OF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... .. : Index No. : UNITED STATES DISTRICT COURT Plaintiff(s) WESTERN DISTRICT OF NEW YORK -against- Calendar No. : JUDICIAL SUBPOENA : _______________________________________, (Petitioner’s name and inmate number) : : Petitioner, _____-CV-________ Defendant(s) : ...................................................... v. _______________________________________, THE PEOPLE OF THE STATE OF NEW YORK (Respondent’s name) TO Respondent. GREETINGS: PETITIONER'S RESPONSE AS TO WHY THE PETITION WE COMMAND YOU, NOT BE BARRED BY 28 U.S.C. §aside, you and each of you attend before SHOULD that all business and excuses being laid 2244(d)(1) , the Honorable at the Court located at County ofIf your petition is in jeopardy under 28 U.S.C. § 2244(d)(1) because it appears to be 1. in room , o'clock untimely,, on the why day offeel that the, 20 explain you petition at not untimely.in the explanation at any recessed is Your noon, and should or adjourned date, to testify and give evidence as a witness in this action on the part of the rely on facts, not your opinions or conclusions. Your failure to comply with this subpoena is punishable as a contempt of court and will make you liable to the party on whose behalf this subpoena was issued for a maximum penalty of $50 and all damages sustained as a result of your failure to comply. Witness, Honorable Court in County, , one of the Justices of the day of , 20 (Attorney must sign above and type name below) Attorney(s) for 2. Have you filed any collateral attacks (such as NY CPL 440 motions) on your conviction? YES _______ NO ________. Office and P.O. Address 3. If you answered YES to question 2, list each collateral attack you filed, the date it was filed, Telephone No.: the date it was determined, and, if you appealed the determination, the date the appeal was decided. Facsimile No.: E-Mail Address: Mobile Tel. No.: American LegalNet, Inc. www.USCourtForms.com COURT COUNTY .OF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ......... .. : : Index No. Calendar No. : Be thorough and detailed; a collateral attack may toll the running JUDICIAL SUBPOENA § of the statute, see 28 U.S.C. Plaintiff(s) 2244(d)(2), and without complete information, you may not receive the full benefit of the tolling -against: period. : Type of collateral motion filed Date collateral motion filed Date collateral motion decided : Date appeal filed Date appeal decided Defendant(s) : ...................................................... THE PEOPLE OF THE STATE OF NEW YORK TO GREETINGS: WE COMMAND YOU, that all business and excuses being laid aside, you and each of you attend before , the Honorable at the Court located at County of in room , on the day of , 20 , at o'clock in the noon, and at any recessed or adjourned date, to testify and give evidence as a witness in this action on the part of the I declare under penalty of perjury that the foregoing is true and correct. Date: Your failure to comply with this subpoena is punishable as a contempt of court and will make you liable to (Petitioner’s Signature and Inmate Number) the party on whose behalf this subpoena was issued for a maximum penalty of $50 and all damages sustained as a result of your failure to comply. Witness, Honorable Court in County, , one of the Justices of the day of , 20 (Attorney must sign above and type name below) Attorney(s) for Office and P.O. Address Telephone No.: Facsimile No.: E-Mail Address: Mobile Tel. No.: American LegalNet, Inc. www.USCourtForms.com