Coleman v. Curry

Filing 19

ORDER DENYING 15 Petitioner's Motion for Entry of Default and DENYING 16 Petitioner's Motion for Summary Judgment signed by Chief Judge Anthony W. Ishii on 7/29/2009. (Jessen, A)

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1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 B. CURRY, Warden 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. 17 Now pending before the Court is Petitioner's motion for entry of default and motion for 18 summary judgment filed on June 11, 2009. (Court Docs. 15, 16.) 19 Entry of default is appropriate as to any party against whom a judgment for affirmative 20 relief is sought that has failed to plead or otherwise defend as provided by the Federal Rules of 21 Civil Procedure and where that fact is made to appear by affidavit or otherwise. See Fed. R. Civ. 22 P. 55(a). 23 On May 8, 2009, the Court directed Respondent to file a response to the petition within 24 25 timely response to the petition on July 7, 2009, which was served by mail on Petitioner at his 26 27 28 Petitioner incorrectly states that the Court ordered Respondent to file a response to the petition within tw e n t y or thirty days plus an additional three days for mailing. (Court Doc. 15, Motion, at 3.) 1 UNITED STATES DISTRICT COURT MALCOLM P. COLEMAN, Petitioner, v. 1:09-cv-00546-AWI-DLB (HC) ORDER DENYING PETITIONER'S MOTION FOR ENTRY OF DEFAULT AND MOTION FOR SUMMARY JUDGMENT [Docs. 15, 16] / sixty (60) days from the date of service, i.e. July 7, 2009.1 (Court Doc. .) Respondent filed a 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 address of record. (Court Doc. 17.) Accordingly, because there is simply no basis upon which to enter default, Petitioner's motion for default judgment and motion for summary judgment are HEREBY DENIED. IT IS SO ORDERED. Dated: 0m8i78 July 29, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 2

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