Bisel v. Fisher et al

Filing 44

FINDINGS and RECOMMENDATION to DENY 41 Motion for Default; Referred to Judge Dale A. Drozd, signed by Magistrate Judge Sheila K. Oberto on 12/23/2019. Objections to F&R due within THIRTY (30) DAYS. (Orozco, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY EUGENE BISEL,

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Petitioner,

No. 1:17-cv-00013-DAD-SKO (HC)
FINDINGS AND RECOMMENDATION TO
DENY MOTION FOR DEFAULT

v.
[Doc. 41]
RAY FISHER, JR., et al.,
Respondents.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
On December 2, 2019, Petitioner filed a motion entitled, “Motion to Disqualify State for

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Violating Court Order; Motion to Issue Writ of Habeas Corpus.” (Doc. 41.) Petitioner complains

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that Respondent has failed to timely comply with a court order. He requests that the writ be

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issued and he be released from custody. Respondent did not file a response to the motion. The

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Court will construe the motion as a motion for default and recommend it be denied.

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DISCUSSION
Petitioner notes that the Court issued an order on September 20, 2019, directing

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Respondent to return a completed form indicating consent or decline to magistrate judge

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jurisdiction within thirty days. (Doc. 34.) Petitioner notes that Respondent filed the form on

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November 5, 2019, which was beyond the thirty days allotted. (Doc. 36.) Petitioner argues that
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because Respondent failed to timely comply with the deadlines set by the Court, Petitioner is

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entitled to default, issuance of the writ, and release from custody. The Court rejects this

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contention. 28 U.S.C. § 2254(a) provides that the writ of habeas corpus shall only extend to a

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prisoner if he is “in custody in violation of the Constitution or laws or treaties of the United

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States.” See also 28 U.S.C. § 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 375 n. 7 (2000). 28

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U.S.C. § 2243 provides that “the court shall summarily hear and determine the facts, and dispose

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of the matter as law and justice require.” 28 U.S.C. § 2243. In Townsend v. Sam, 372 U.S. 293,

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312 (1963), the Supreme Court stated: “State prisoners are entitled to relief on federal habeas

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corpus only upon proving that their detention violates the fundamental liberties of the person,

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safeguarded against state action by the Federal Constitution.” The burden to show that he is in

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custody in violation of the Constitution of the United States is on Petitioner. 28 U.S.C. §

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2254(d); Lockyer v. Andrade, 538 U.S. 63, 70-71 (2003); Williams, 529 U.S. at 412-413. The

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failure of state officials to timely comply with the deadlines set by this Court does not relieve

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Petitioner of his burden of proof. Default judgments in habeas corpus proceedings are not

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available as a procedure to empty state prisons.

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While it is true that Respondent’s submission was not within the time allotted,

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Respondent’s failure does not entitle Petitioner to default. Gordon v. Duran, 895 F.2d 610, 612

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(9th Cir. 1990); see also Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994). Respondent is

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hereby cautioned that failure to comply with court deadlines may result in appropriate sanctions.

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The Court also commends Petitioner for his diligence in attempting to meet all time deadlines.

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RECOMMENDATION
For the foregoing reasons, the Court RECOMMENDS that Petitioner’s motion for default
judgment be DENIED.
This Findings and Recommendation is submitted to the assigned district judge pursuant to

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the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice

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for the United States District Court, Eastern District of California. Within thirty (30) days after

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being served with a copy, any party may file written objections with the Court and serve a copy

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on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendation.” Replies to the objections shall be served and filed within ten (10) court

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days (plus three days if served by mail) after service of the objections. The Court will then

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review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

December 23, 2019

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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