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Baughman v. Cate

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 2, 2010

RICKY VERRELL BAUGHMAN, PETITIONER,
v.
MATTHEW CATE, RESPONDENT.

The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Petitioner is a former state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raised four issues in his petition: 1) sufficiency of the evidence; 2) application of the Sandoval*fn1 harmless error analysis on aggravating circumstances violated due process; 3) Sandoval violates double jeopardy; 4) re-sentencing pursuant to Sandoval violated the prohibition against ex post facto laws.

Respondent filed an answer on December 11, 2009 (Doc. 11), but did not address petitioner's double jeopardy and ex post facto arguments in claims three and four. While not ruling on the issue, the court has briefly reviewed the claims and they appear exhausted. Both claims were brought before the Court of Appeal on remand, that denied the claims without a reasoned opinion. Lod. Doc. 11 at 13, fn. 2. Petitioner then raised the claims in his petition to the California Supreme Court. Lod. Doc. 12 at 14-22.

Within twenty-one days of service of this order, respondent shall brief these two claims. Within fourteen days of respondent filing briefing, petitioner may, if he chooses, file a traverse.

Accordingly, IT IS HEREBY ORDERED that within twenty-one days of service of this order, respondent shall brief these two claims. Within fourteen days of respondent filing briefing, petitioner may, if he chooses, file a traverse.


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