Vann v. Smith

Filing 23

REPORT AND RECOMMENDATION re 16 MOTION to Deny and Rule for the Petitioner by Default filed by Jerome Eugene Vann should be DENIED. Objections to R&R due by 1/28/2014. Signed by Magistrate Judge Janie S. Mayeron on 1/14/14. (akl) (cc: Vann)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNEOSTA
JEROME EUGENE VANN,
Petitioner,

CIV. NO. 13-893(SRN/JSM)
REPORT AND RECOMMENDATION

v.
MICHELLE SMITH,
Warden,
Respondent.
The above matter is before the undersigned on petitioner’s Motion to Deny, and
Rule for the Petitioner by Default. [Docket No. 16]. This matter was referred to this
Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and
Local Rule 72.1.
I.

BACKGROUND
On April 30, 2013, this Court issued an Order requiring respondent to file an

answer to petitioner’s petition for habeas corpus within thirty days. Order [Docket No.
7]. On May 30, 2013, respondent moved for two-week extension of time to file and
serve a response. Respondent’s Motion for Extension of Time to File Answer [Docket
No. 12]. On May 31, 2013, this Court granted respondent’s motion and ordered that
respondent’s response be filed and served by June 14, 2013. Order [Docket No. 15].
On June 5, 2013, petitioner filed the instant motion, asking the Court to deny
respondent’s Motion for Extension of Time to File Answer “after failing to comply with
this court’s order of May 30, 2013”1 and requesting that the Court rule for petitioner by
default. Petitioner’s Motion to Deny, p. 1 [Docket No. 16]. Petitioner submitted an
1

The Court assumes petitioner intended to refer to the April 30, 2013 Order.

affidavit in which he stated that respondent failed to file and serve a response by May
30, 2013, therefore, petitioner was entitled to default judgment. Affidavit of Jerome E.
Vann in Support of Motion to Deny, p. 1 [Docket No. 17].

Respondent filed her

response to the petition on June 13, 2013. [Docket Nos. 19, 20].
In light of the fact that respondent timely filed her response to petitioner’s petition,
this Court recommends that petitioner’s Motion to Deny, and Rule for the Petitioner by
Default be denied.
II.

RECOMMENDATION
For the reasons set forth above and based on all of the files, records, and

proceedings herein, IT IS RECOMMENDED THAT:
Petitioner’s Motion to Deny, and Rule for the Petitioner by Default [Docket No.
16] be DENIED.
Dated: January 14, 2014

Janie S. Mayeron
JANIE S. MAYERON
United States Magistrate Judge

NOTICE
Under D. Minn. LR 72.2(b) any party may object to this Report and Recommendation by
filing with the Clerk of Court, and serving all parties by January 28, 2014 a writing which
specifically identifies those portions of this Report to which objections are made and the
basis of those objections. A party may respond to the objecting party's brief within 14
days after service thereof. All briefs filed under this Rule shall be limited to 3500 words.
A judge shall make a de novo determination of those portions to which objection is
made. This Report and Recommendation does not constitute an order or judgment of
the District Court, and it is therefore not appealable directly to the Circuit Court of
Appeals.