Richardson v. Scutt

Filing 11

ORDER denying 9 Petitioner's Motion for Default Judgment as Moot and Compelling Respondent to Produce the Necessary Rule 5 Materials. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TYRELL RICHARDSON, Petitioner, v. DEBRA L. SCUTT, Respondent. ______________________________/ ORDER DENYING PETITIONER'S MOTION FOR DEFAULT JUDGMENT AS MOOT AND COMPELLING RESPONDENT TO PRODUCE THE NECESSARY RULE 5 MATERIALS This is a habeas case under 28 U.S.C. § 2254. Petitioner Tyrell Richardson is a state inmate at the G. Robert Cotton Correctional Facility in Jackson, Michigan. Petitioner, proceeding pro se, filed a petitioner for a writ of habeas corpus, alleging that he is incarcerated in violation of his constitutional rights. Before the Court is Petitioner's motion for default. Petitioner filed his habeas petition on March 24, 2009. On March 30, 2009, the Court signed an order of responsive pleading, requiring Respondent to file an answer in accordance with Rule 5 of the habeas corpus rules by September 30, 2009. The order specifically stated that as part of the answer, Respondent shall file a copy of any prior decisions, pleadings, briefs and transcripts needed to adjudicate the issues presented. Id. Petitioner seeks a default because Respondent has not complied with the Court's order. A default judgment is generally unavailable in a habeas corpus proceeding on the ground Case No. 09-cv-11088 Honorable Avern Cohn

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that government officials failed to file a response to the petition. See, e.g., Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970). Respondent did however file her answer on September 30, 2009, but failed to file the necessary Rule 5 materials. Those materials are necessary for resolving Petitioner's claims. Therefore, the Court denies Petitioner's request as to Respondent's failure to file her answer as moot. Regarding the filing of the necessary Rule 5 materials, the Court orders Respondent to file those materials within twenty-one days from the date of this order. SO ORDERED.

s/ Avern Cohn AVERN COHN UNITED STATES DISTRICT JUDGE Dated: October 14, 2009 I hereby certify that a copy of the foregoing document was mailed to Tyrell Richardson, 601396, G. Robert Cotton Correctional Facility, 3500 N. Elm Road, Jackson, MI 49201 and the attorneys of record on this date, October 14, 2009, by electronic and/or ordinary mail. s/ Julie Owens Case Manager, [phone]

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