Free Order on Motion for Leave to Proceed in forma pauperis - District Court of California - California

Case 3:07-cv-04736-JSW

Document 5

Filed 10/09/2007

Page 1 of 2

1 2 3 4 5 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 10 SAINT DEJUAN MOORE, Petitioner, v. BEN CURRY, Warden, Respondent. / 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Movant Saint DeJuan Moore ("Petitioner"), a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court HEREBY ORDERS that Petitioner's application to proceed in forma pauperis is GRANTED. BACKGROUND Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Alameda for attempted second degree robbery. (Penal Code §§ 211, 12022.7(a)). DISCUSSION Petitioner's Legal Claims. ORDER (1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS AND (2) TO SHOW CAUSE No. C 07-04736 JSW IN THE UNITED STATES DISTRICT COURT

United States District Court

11
For the Northern District of California

12 13

Petitioner seeks federal habeas corpus relief by raising the following claims: (1) the prosecutor's misconduct in commenting on Petitioner's failure to testify violated the Petitioner's Fifth Amendment right to remain silent; (2) the Petitioner's constitutional rights were violated by the prosecutor's misconduct in assuring the jury that the presumption of innocence disappears at the close of evidence; (3) the Petitioner's constitutional rights were

Case 3:07-cv-04736-JSW

Document 5

Filed 10/09/2007

Page 2 of 2

1 2 3 4 5 6 7 8 9 10

violated by the prosecutor's misconduct in vouching for her witness' credibility; (4) and the Petitioner's constitutional rights were violated by the prosecutor's misconduct in suggesting to the jury that Petitioner would prey on others if he were acquitted. Liberally construed, the claims appear potentially colorable under 28 U.S.C. § 2254 and merit an answer from respondent. CONCLUSION For the foregoing reasons and for good cause shown: 1. 2. Petitioner's application to proceed in forma pauperis is GRANTED. Petitioner shall serve by certified mail a copy of this order and the petition and

all attachments thereto upon respondent. 3. Respondent shall file with the court and serve on petitioner, within 60 days of the

United States District Court

11
For the Northern District of California

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

date of this order, an answer conforming in all respects to Rule 5 of the Rules Governing Section 2254 Cases, showing cause why a writ of habeas corpus should not be issued. Respondent shall file with the answer and serve on Petitioner a copy of all portions of the administrative record that are relevant to a determination of the issues presented by the petition. 4. If Petitioner wishes to respond to the answer, he shall do so by filing a traverse

with the Court and serving it on respondent within 30 days of his receipt of the answer. IT IS SO ORDERED.

Dated: October 9, 2007 JEFFREY S. WHITE UNITED STATES DISTRICT JUDGE

2