McKinney v. Harris

Filing 24

ORDER DENYING 21 Petitioner's Motions for Default, Judgment of Acquittal, and Immediate Release From Custody signed by Magistrate Judge Stanley A. Boone on 4/9/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD McKINNEY,

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Petitioner,

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1:14-cv-01751-SAB-HC
ORDER DENYING PETITIONER’S
MOTIONS FOR DEFAULT, JUDGMENT
OF ACQUITTAL, AND IMMEDIATE
RELEASE FROM CUSTODY
(ECF Nos. 19 and 21)

v.
CARL WOFFORD,
Respondent.

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Petitioner is a state prisoner proceeding pro se in a habeas corpus action pursuant to 28

18 U.S.C. § 2254. Both parties have consented to the jurisdiction of the magistrate judge pursuant
19 to 28 U.S.C. § 636(c). (ECF Nos. 4 & 14).
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In his federal habeas petition, Petitioner challenges his 2012 conviction in the Kings

21 County Superior Court for continuous sexual abuse. In his petition, Petitioner claims that: 1) the
22 prosecutor committed misconduct and he received ineffective assistance of counsel because the
23 prosecutor and defense counsel suppressed evidence and used perjured testimony, fabricated an
24 illegal Cal. Penal Code § 1370 competency trial, and forced Petitioner to take medication to
25 coerce a no contest plea; 2) he received ineffective assistance of counsel because his second trial
26 attorney abandoned him and did not conduct discovery, counsel him, or make objections; and 3)
27 the plea was coerced because he was drugged by doctors.
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Petitioner filed motions for discovery, immediate release from custody, and judgment of

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1 acquittal, which were denied on February 25, 2015. (ECF Nos. 11 and 13). On March 10, 2015,
2 Respondent filed a motion to dismiss. (ECF No. 15). On that same day, Respondent lodged
3 documents in paper with the Court. (ECF No. 17). On March 19, 2015, Petitioner filed a notice
4 of default and judgment for acquittal. (ECF No. 19). On March 30, 2015, Petitioner filed his
5 opposition to Respondent’s motion to dismiss. (ECF No. 20). On March 30, 2015, Petitioner
6 filed a motion for default and judgment for acquittal. (ECF No. 21).
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I.

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DISCUSSION

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The Court previously treated Petitioner’s motion for immediate release from custody and

10 judgment of acquittal as a motion to expedite proceedings in the pending petition for writ of
11 habeas corpus. (ECF No. 13). As the Court previously informed Petitioner, the Court does not
12 have an expedited calendar. (ECF No. 13 at 2). The Court will review Petitioner’s habeas
13 petition when it is fully briefed and ready for review. In addition, the Court has a substantial
14 number of pending cases, and the Court must act first on those matters that have been pending
15 the longest.
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Petitioner argues that Respondent has defaulted because he did not submit his response

17 within the time period proscribed in the Court’s order to respond. Respondent filed his motion to
18 dismiss on March 10, 2015. (ECF No. 15). Respondent filed a motion to file his response one
19 day late, which the Court denied as moot. (ECF Nos. 16 and 17). As the Court noted in its order
20 denying as moot Respondent’s request to file his response one day late, Respondent filed his
21 motion to dismiss in accordance with the Court’s January 6, 2015, order to respond. (ECF No.
22 18). Respondent had until March 12, 2015, to file his response to the Court’s order to respond.
23 Furthermore, even if Petitioner had filed his motion to dismiss one day late, the Court noted that
24 it would have granted Respondent’s request to file his response late. (ECF No. 18 at 2).
25 Therefore, Respondent complied with the deadlines set by the Court.
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Petitioner also argues that Respondent has defaulted because Respondent did not file any

27 court ordered pleadings or other documents to support the motion to dismiss. (ECF No. 21).
28 Specifically, Petitioner argues that Respondent did not file “Petitioner’s granted CR-120 appeal

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1 for I.A.C.,” so Petitioner should be granted default judgment and immediate release from
2 custody. (ECF No. 21 at 3-4). It is unclear what Petitioner is referring to when he discusses
3 “Petitioner’s granted CR-120 appeal for I.A.C.” because the record does not contain any mention
4 of a “CR-120 appeal for I.A.C.” that was granted and Petitioner has not provided any details for
5 this appeal or a copy of the order. The Court had ordered Respondent to include copies of all of
6 Petitioner’s state court filings and dispositive rulings with a motion to dismiss. (ECF No. 8 at 2).
7 Respondent lodged 16 documents with the Court that included the abstract of judgment in this
8 case, the petitions for writ of habeas corpus that Petitioner filed in state court, and the state court
9 rulings on the petitions for writ of habeas corpus. (ECF No. 17). Therefore, Respondent filed
10 the state court filings and dispositive rulings in accordance with the Court’s order to respond.
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Petitioner argues that Respondent should have addressed the merits of claims 1 and 2 in

12 the motion to dismiss in accordance with the Rules Governing Section 2254 Cases. (ECF No. 21
13 at 2-3). It appears that Petitioner believes that Respondent filed an answer in accordance with
14 Rule 5 of the Rules Governing Section 2254 Cases. (ECF No. 2). However, Petitioner is
15 incorrect. Respondent did not file an answer to the petition. Respondent filed a motion to
16 dismiss in accordance with the Court’s order to respond and the Rules Governing Section 2254
17 Cases. Rule 4 of the Rules Governing Section 2254 Cases provides that “If the petition is not
18 dismissed, the judge must order the respondent to file an answer, motion, or other response
19 within a fixed time, or to take other action the judge may order.” Therefore, the Court may order
20 a respondent to file an answer or a motion to dismiss. Here, the Court ordered Respondent to file
21 a response to the petition that could have been either an answer addressing the merits of the
22 petition or a motion to dismiss the petition. (ECF No. 8 at 1-2). Respondent chose to file a
23 motion to dismiss. Rule 5(b) of the Rules Governing Section 2254 Cases provides that “The
24 answer must address the allegations in the petition.” As Respondent did not file an answer, Rule
25 5(b) of the Rules Governing Section 2254 Cases does not apply. Therefore, Respondent did not
26 have to address the merits of the petition in his motion to dismiss.
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Furthermore, Title 28, United States Code, Section 2241(c)(3) provides that the writ of

28 habeas corpus shall not extend to a prisoner unless he is “in custody in violation of the

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1 Constitution or laws or treaties of the United States.”

Section 2243 of Title 28, United States

2 Code provides that “the court shall summarily hear and determine the facts, and dispose of the
3 matter as law and justice require.” In Townsend v. Sam, 372 U.S. 293, 312, 83 S.Ct. 745 (1963),
4 the Court said: “State prisoners are entitled to relief on federal habeas corpus only upon proving
5 that their detention violates the fundamental liberties of the person, safeguarded against state
6 action by the Federal Constitution.” The Petitioner has the burden to show that he is in custody
7 in violation of the Constitution of the United States. The failure of state officials to timely
8 comply with the deadlines set by this Court does not relieve Petitioner of his burden of proof.
9 See Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994) (holding that Respondent’s failure to
10 timely respond to petition does not entitle Petitioner to default). Default judgments in habeas
11 corpus proceedings are not available as a procedure to empty state prisons. Therefore, even if
12 Respondent had mistakenly failed to address the merits of the petition in the motion to dismiss,
13 had not timely filed his motion to dismiss, and had not attached all of the relevant documents to
14 his motion to dismiss, Petitioner would not be entitled to release from custody unless and until
15 Petitioner proves to this Court that he is in custody in violation of the United States Constitution.
Thus, Petitioner’s motions for default, judgment of acquittal, and immediate release from

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17 custody must be denied.
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II.

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ORDER

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Accordingly, IT IS HEREBY ORDERED that Petitioner’s motions for default, judgment

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22 of acquittal, and immediate release from custody are DENIED.
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IT IS SO ORDERED.

25 Dated:

April 9, 2015
UNITED STATES MAGISTRATE JUDGE

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