Evans v. Hartley
Filing
25
FINDINGS and RECOMMENDATIONS recommending that 24 Petitioner's Motion for Default Judgment be DENIED re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 11/9/2011. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
1
2
3
4
5
6
UNITED STATES DISTRICT COURT
7
EASTERN DISTRICT OF CALIFORNIA
8
9
10
11
12
13
14
15
16
LATIF R. EVANS,
)
)
Petitioner,
)
)
)
v.
)
)
HARTLEY, Warden, Avenal State )
Prison,
)
)
Respondent.
)
)
)
1:11-cv—1424-LJO-SKO-HC
FINDINGS AND RECOMMENDATION TO
DENY PETITIONER’S MOTION FOR
DEFAULT JUDGMENT
(DOC. 24)
DEADLINE FOR FILING OBJECTIONS:
THIRTY (30) DAYS AFTER THE DATE
OF SERVICE OF THIS ORDER
17
Petitioner is a state prisoner proceeding pro se and in
18
forma pauperis with a petition for writ of habeas corpus pursuant
19
to 28 U.S.C. § 2254.
The matter has been referred to the
20
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local
21
Rules 302 and 304. Pending before the Court is Petitioner’s
22
motion for an order to expedite his immediate release, which the
23
Court understands to be Petitioner’s motion for default judgment.
24
The motion was filed on November 2, 2011.
25
I. Background
26
On August 30, 2011, the Court directed Respondent to file a
27
response to the petition no later than sixty days after service
28
1
1
of the order.
2
Petitioner and timely filed in this Court a motion for an
3
extension of time to file the response to the petition.
4
November 1, 2011, the Court granted the motion and extended the
5
time for filing the response to the petition for thirty days from
6
service of the order, or until on or about December 5, 2011.
7
November 2, 2011, Petitioner filed a motion for immediate release
8
from custody based on what Petitioner perceived to have been
9
Respondent’s failure to file a timely response to the petition.
10
The Court understands this motion to constitute a motion for the
11
entry of a default judgment.
12
On October 28, 2011, Respondent served by mail on
On
On
Respondent has not responded to the motion for default
13
judgment.
14
documents filed in this case.1
15
is ready for decision.
However, the pertinent facts are clear from the
The Court finds that the motion
16
II.
17
Here, as detailed above, Respondent timely requested, and
Motion for Default Judgment
18
was granted, an extension of time to respond to the petition.
19
The Court thus finds that there has been no inappropriate delay
20
on the part of Respondent in responding to the petition or other
21
failure by Respondent to comply with the Court’s order to
22
respond.
23
default judgment based on delay.
24
25
Accordingly, Petitioner is not entitled to entry of a
Further, a petitioner is not entitled to a default judgment
where a respondent fails to respond to a petition for writ of
26
27
28
1
The Court may take judicial notice of court records. Fed. R. Evid.
201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993);
Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978),
aff’d, 645 F.2d 699 (9th Cir. 1981).
2
1
habeas corpus.
2
writ of habeas shall not extend to a prisoner unless he is in
3
custody in violation of the Constitution, laws, or treaties of
4
the United States.
5
summarily hear and determine the facts and dispose of the matter
6
as law and justice require.
7
petitioner’s burden to show that he is in custody in violation of
8
the laws of the United States.
9
322, 358 n. 3 (2003).
Title 28 U.S.C. § 2241(c)(3) provides that the
Section 2243 provides that the Court shall
It is established that it is the
Miller-El v. Cockrell, 537 US.
A failure by state officials to comply
10
timely with a deadline set by the Court does not relieve
11
Petitioner of the burden of proof or entitle him to entry of a
12
default or a default judgment.
13
612 (9th Cir. 1990); see also Bleitner v. Welborn, 15 F.3d 652,
14
653 (7th Cir. 1994) (no entitlement to default judgment because
15
of an untimely response); United States ex rel. Mattox v. Scott,
16
507 F.2d 919, 924 (7th Cir. 1974) (late filing of a motion to
17
dismiss did not entitle a petitioner to entry of default);
18
Bermudez v. Reid, 733 F.2d 18, 21 (2nd Cir. 1984) (late filing of
19
an answer did not justify default judgment).
Gordon v. Duran, 895 F.2d 610,
20
III. Recommendation
21
Accordingly, pursuant to the foregoing, it is RECOMMENDED
22
23
that Petitioner’s application for default judgment be DENIED.
This report and recommendation is submitted to the United
24
States District Court Judge assigned to the case, pursuant to the
25
provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the
26
Local Rules of Practice for the United States District Court,
27
Eastern District of California.
28
being served with a copy, any party may file written objections
Within thirty (30) days after
3
1
with the Court and serve a copy on all parties. Such a document
2
should be captioned “Objections to Magistrate Judge’s Findings
3
and Recommendations.”
4
and filed within fourteen (14) days (plus three days if served by
5
mail) after service of the objections.
6
review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
7
(b)(1)(C).
8
objections within the specified time may waive the right to
9
appeal the District Court’s order.
10
Replies to the objections shall be served
The Court will then
The parties are advised that failure to file
Martinez v. Ylst, 951 F.2d
1153 (9th Cir. 1991).
11
12
IT IS SO ORDERED.
13
Dated:
ie14hj
November 9, 2011
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?