Knoller v. Miller

Filing 8

ORDER DENYING REQUEST FOR DEFAULT AND GRANTING APPLICATION FOR EXTENSION OF TIME TO FILE RESPONSE by Judge Alsup denying 4 Motion extend time; granting 5 Motion for Extension of Time to File Response/Reply (whalc2, COURT STAFF) (Filed on 7/2/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARJORIE KNOLLER,

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For the Northern District of California

United States District Court

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Petitioner,

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No. C 12-00996 WHA

v.

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WALTER MILLER, Warden, Valley State
Prison for Women,

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ORDER DENYING REQUEST
FOR DEFAULT AND GRANTING
APPLICATION FOR EXTENSION
OF TIME TO FILE RESPONSE

Respondent.
/

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Pursuant to 28 U.S.C. 2254, petitioner Marjorie Knoller filed a petition for a writ of

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habeas corpus. An order to show cause issued requiring respondent to file an answer or motion

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to dismiss on procedural grounds in lieu of an answer by June 18, 2012. None was filed. A

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second order to show cause issued requiring respondent to file a written response explaining

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respondent’s failure to timely file an answer in accordance with the first order to show cause.

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The response was due June 25, 2012. None was filed.

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On June 26, 2012, petitioner, through counsel, filed a request to enter default pursuant to

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FRCP 55(a) on the grounds that respondent failed to respond to both orders to show cause. On

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June 27, 2012, respondent filed a motion for an extension of time to file a response to the first

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order to show cause. That same day, respondent filed a motion to dismiss the petition as

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unexhausted. Also on June 27, 2012, respondent filed a response to the second order to show

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cause explaining respondent’s failure to timely respond to the petition. According to Attorney
Peggy Ruffra, respondent’s counsel of record, after the first order to show cause issued, the case

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was reassigned to her because the previous attorney handling the state proceedings left the

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Attorney General’s office in April 2012. Upon receiving the first order to show cause, Attorney

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Ruffra inadvertently calendared the due date for the response brief as July 18, instead of June 18

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(Ruffra Decl. ¶ 2). The second order to show cause was electronically filed, but the Attorney

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General’s office was not served a copy of the order and did not receive an email notification

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(Ruffra Decl. ¶ 4). Thus, Attorney Ruffra did not become aware of the second order to show

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cause until she received petitioner’s request to enter default on June 26, 2012, which mentioned

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the second order to show cause (ibid.).

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Petitioner, who is serving a sentence of fifteen years to life, will not be prejudiced by the
nine-day delay in filing the motion to dismiss. Good cause having been shown for the delay in

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For the Northern District of California

United States District Court

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responding to the first and second orders to show cause, the respondent’s request for an

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extension of time to file a response to the petition for writ of habeas corpus is GRANTED.

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Respondent’s motion to dismiss, filed June 26, 2012, is accepted.

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The request to enter default pursuant to FRCP 55(a) is DENIED. A motion to dismiss the

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petition has been filed and there was good cause for respondent’s delay in responding to the

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orders to show cause.

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IT IS SO ORDERED.

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Dated: July 2, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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