Post Conviction Relief

Motion to Reopen Petition for Post Conviction Relief

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF

DIVISION

In the Matter of the Petition of

to Reopen Petition for Post Conviction Relief

COMES NOW , Petitioner, and pursuant to those rights asserted here under the Fifth, Sixth, Eighth, Ninth, Tenth, and Fourteenth Amendments to the United States Constitution (U.S. Const. Amend. Sixth, U.S. Const. Amend. Eighth, U.S. Const. Amend. Ninth, U.S. Const. Amend. Tenth, U.S. Const. Amend. Fourteenth), the Constitution, and law, including , who respectfully files this Motion to reopen his Petition for Post Conviction Relief on the grounds (briefly summarize grounds)

CLAIMS FOR RELIEF

1. In violation of the Sixth, Eighth, and Fourteenth Amendments (U.S. Const. Amend. Sixth, U.S. Const. Amend. Eighth, U.S. Const. Amend. Fourteenth), the trial Court provided instructions on the meaning of "reasonable doubt" which lessened the prosecution's burden of proof at both the guilt and sentencing phases of trial.

2. Petitioner was indicted by a grand jury, from which women had been systematically excluded as grand jury forepersons, in violation of his right to due process, and to equal protection, and to a grand jury selected from a fair cross-section of the community, and to a grand jury free from discrimination or underrepresentation against any cognizable group. (Set forth facts concerning the Clerk's Jury Book, number of jury forewomen and grand juries, state statutes or rules, etc.)

3. At sentencing, the jury found no valid aggravating factor to impose the death sentence, and therefore the death sentence is void and unconstitutional under the Eighth and Fourteenth Amendments and (specify other statutes) .

4. At sentencing, the jury was also misled into believing that mitigating circumstances had to be found unanimously, in violation of the Eighth and Fourteenth Amendments, and (specify state statutes) .

5. At sentencing, the jury was not instructed on the meaning or effect of a non-unanimous verdict and jury members were precluded from learning that their failure to unanimously agree as to sentence requires imposition of a life sentence. By precluding the jury from learning the effect of the non-unanimous verdict, jurors were induced to vote for death when they would otherwise vote for life, and were induced to discount and not fully consider Petitioner’s mitigating evidence. This violated his right to a fair and non-arbitrary capital sentencing proceeding and to full consideration of mitigating evidence, in violation of the Eighth and Fourteenth Amendments, and (specify state statutes) .

6. In violation of the Eighth and Fourteenth Amendments, the death penalty constitutes cruel and unusual punishment as a result of the length of time Petitioner has been incarcerated and incarcerated under sentence of death following the offense for which he is convicted. The death sentence is therefore unconstitutionally cruel and unusual.

THE MOTION TO REOPEN SHOULD BE GRANTED

7. Under (specify state statute) , a motion to reopen a first post conviction proceeding may be filed if:

A. The claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial, if retrospective application of that right is required. Such motion must be filed within one (1) year of the ruling of the highest state appellate court or the United States Supreme Court establishing a constitutional right that was not recognized as existing at the time of trial.

B. Reasonable doubt claims: (Allege facts concerning reasonable doubt in relation to jury instructions, state and local statutes, federal statues (e.g. U.S. Constitution), etc.)

8. (Set forth further arguments.)

9. Grand jury discrimination claim: (Allege facts concerning discrimination in the assignment of grand jury members and forepersons pertaining to state and local statutes, federal statutes, etc.)

10. There was no proper finding of an aggravating circumstance and the death sentence is therefore void under the Eighth and Fourteenth Amendments and (cite state constitution) .

11. Jury instructions limit the full consideration of mitigating evidence at sentencing: (Allege facts showing this)

12. The Jury was not instructed on effect of non-unanimous verdict.

13. Lackey Eighth Amendment claim: As with the prior claims cited in this Motion, Petitioner’s claim for relief under Lackey v. Texas, 514 U.S. 1045, 115 S. Ct. 1421 (1995), entitles him to relief under (specify state statute) . For these reasons, Petitioner is entitled to relief.

CONCLUSION

WHEREFORE, Petitioner respectfully asks this Court to grant this Motion to Reopen. Petitioner further asks that this Court conduct a hearing to permit the presentation of proof, and, after the consideration of all such proof, grant this Motion to Reopen, and discharge Petitioner, from the unconstitutional conviction and sentence under which he now labors.

Respectfully submitted,

Certificate of Service

This is to certify that I, , attorney for Petitioner , have this date served a true and correct copy of the above and foregoing Motion by U.S. Mail, postage fully prepaid, to the following counsel of record for the Plaintiff:

This the day of , 20.

Respectfully Submitted,

Notice of Motion to Reopen Petition for Post Conviction Relief

Petitioner respectfully gives notice that a Motion to Reopen Post Conviction Petition was filed on in the Criminal Court of on behalf of the Petitioner, . A copy of the Motion to Reopen is attached. Petitioner's counsel believe the filing of this Motion may be necessary to preserve Petitioner’s right to raise additional meritorious claims in federal court. Because the recognition of any one of these claims would necessarily involve a finding of a constitutional right not previously recognized in , Petitioner is not barred from raising these claims in his Motion to Reopen. It is not expected that the filing of the Motion to Reopen will interfere with or delay the ongoing proceedings in Federal Court and Petitioner anticipates being able to proceed with discovery as set forth in the suggested timetable recently filed with this Court.

Respectfully Submitted,