Barrow v. Swarthout

Filing 13

ORDER GRANTING MOTIN TO LIFT STAY; REOPENING CASE; TO SHOW CAUSE.. Signed by Judge JEFFREY S. WHITE on 7/15/11. (jjoS, COURT STAFF) (Filed on 7/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RAEKUBIAN BARROW,

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Petitioner,
vs.
SWARTHOUT, Warden,
Respondent.

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No. C 10-1521 JSW (PR)
ORDER GRANTING MOTION TO
LIFT STAY; REOPENING CASE; TO
SHOW CAUSE

(Docket No. 12)

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INTRODUCTION
Petitioner, a prisoner of the State of California, has filed a habeas corpus petition
pursuant to 28 U.S.C. § 2254 challenging the constitutional validity of his state court
conviction. The petition (docket number 1) set forth two claims for relief, and this case
was stayed to allow Petitioner to exhaust additional claims of ineffective assistance of
counsel. He has filed a motion to lift the stay explaining that he no longer wishes to
pursue the additional claims, and wishes to proceed solely on the basis of the two claims
in the original petition. This order GRANTS Petitioner’s motion to lift the stay and
directs Respondent to show cause why the writ should not issue based upon the two
claims set forth in the original petition.
BACKGROUND
According to the petition, Petitioner was convicted of making terrorist threats in

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2008 in Marin County Superior Court. Petitioner’s appeal to the California Court of

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Appeal and his petition for review in the California Supreme Court were denied in 2009.

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Petitioner filed the instant federal habeas petition in this Court on April 9, 2010.

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DISCUSSION
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Standard of Review
This court may entertain a petition for a writ of habeas corpus “in behalf of a

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person in custody pursuant to the judgment of a State court only on the ground that he is

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in custody in violation of the Constitution or laws or treaties of the United States.” 28

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U.S.C. § 2254(a).

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It shall “award the writ or issue an order directing the respondent to show cause

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why the writ should not be granted, unless it appears from the application that the

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applicant or person detained is not entitled thereto.” Id. § 2243.

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II

Legal Claims

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Petitioner raises the following claims for relief in the petition: (1) improper

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comments by the jurors “tainted” the trial; and (2) prejudicial evidence about Petitioner’s

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prior bad acts was admitted at trial. When liberally construed, these claims implicate

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Petitioner’s right to due process and consequently it does not appear from the face of the

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petition that Petitioner is not entitled to relief. Accordingly, Respondent is ordered to

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respond to the petition as set forth below.

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CONCLUSION

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For the foregoing reasons and for good cause shown,

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1. The motion to lift the stay is GRANTED. The Clerk shall REOPEN the file.

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2. The Clerk shall serve by certified mail a copy of this order and the petition, and

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all attachments thereto, on Respondent and Respondent's attorney, the Attorney General

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of the State of California. The Clerk also shall serve a copy of this order on Petitioner.

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2. Respondent shall file with the Court and serve on Petitioner, within ninety (90)
days of the issuance of this order, an answer conforming in all respects to Rule 5 of the

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Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should

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not be granted. Respondent shall file with the answer and serve on Petitioner a copy of all

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portions of the state trial record that have been transcribed previously and that are relevant

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to a determination of the issues presented by the petition. If Petitioner wishes to respond

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to the answer, he shall do so by filing a traverse with the Court and serving it on

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Respondent within thirty (30) days of the date the answer is filed.

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3. Respondent may file a motion to dismiss on procedural grounds in lieu of an

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answer, as set forth in the Advisory Committee Notes to Rule 4 of the Rules Governing

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Section 2254 Cases. If Respondent files such a motion, Petitioner shall file with the Court

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and serve on Respondent an opposition or statement of non-opposition within thirty (30)

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days of the date the motion is filed, and Respondent shall file with the Court and serve on

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Petitioner a reply within fifteen (15) days of the date any opposition is filed.

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4. It is Petitioner’s responsibility to prosecute this case. Petitioner must keep

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the Court informed of any change of address by filing a separate paper captioned “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion.

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Failure to do so may result in the dismissal of this action for failure to prosecute pursuant

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to Federal Rule of Civil Procedure 41(b).

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5. Petitioner’s motion for appointment of counsel in his other case, Case No. C
11-1000 JSW (PR), is DENIED as that case has been dismissed and is closed.
IT IS SO ORDERED.
DATED: July 15, 2011
JEFFREY S. WHITE
United States District Judge

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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RAEKUBIAN A. BARROW,
Plaintiff,

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Case Number: CV10-01521 JSW
CERTIFICATE OF SERVICE

v.
SWARTHOUT et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 15, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Raekubian A. Barrow
CA Men’s Colony
G16543
Highway 1 North
San Luis Obispo, CA 93401

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Dated: July 15, 2011

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Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk