NESMITH v. COMMON PLEAS COURT OF PHILADELPHIA COUNTY

Filing 16

MEMORANDUM AND/OR OPINION. SIGNED BY MAGISTRATE JUDGE L. FELIPE RESTREPO ON 8/16/10. 8/17/10 ENTERED AND COPIES MAILED, E-MAILED AND FAXED.(COPY TO PRO SE)(lvj, )

NESMITH v. COMMON PLEAS COURT OF PHILADELPHIA COUNTY

Doc. 16

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

WILLIAM NESMITH v. COMMON PLEAS COURT OF PHILADELPHIA COUNTY, et al.

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CIVIL ACTION

NO. 09-4356

MEMORANDUM AND ORDER L. FELIPE RESTREPO UN ITED STATES MAGISTRATE JUDGE AU G U ST 16, 2010

William Nesmith has filed a Petition for Writ of Habeas Corpus Under 28 U.S.C. § 2254. Before the Court is Petitioner's Motion for Default Judgment (Doc. 12) and Petitioner's Motion for Judgment As a Matter of Law (Doc. 15) suggesting that petitioner is entitled to relief as a matter of law based on an alleged untimely Response to the habeas petition. However, prior to the filing of petitioner's two motions, respondent's Motion for Enlargement of Time to File Response to Petition for Writ of Habeas Corpus and Motion for Permission to File Out of Time (Doc. 10) were granted, and respondent thereafter filed the Response to the habeas petition nearly two weeks prior to the expiration of the new filing deadline. Thus, the Response to the habeas petition was timely filed. Moreover, a respondent's failure to timely respond to a habeas petition does not relieve a petitioner of the burden of proving he is in custody in violation of the Constitution. See Alder v. Burt, 240 F. Supp.2d 651, 677 (E.D. Mich. 2003) (citing Allen v. Perini, 424 F.2d 134, 138 (6th Cir.), cert. denied, 400 U.S. 906 (1970)). Thus, even if the Response to the habeas petition were untimely, a respondent's tardiness or failure to answer a habeas corpus petition is not grounds for

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granting federal habeas relief. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) ("The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment."); Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987) ("a default judgment is not contemplated in habeas corpus cases"); Allen, 424 F.2d at 138. Accordingly, Petitioner's Motion for Default Judgment (Doc. 12) and Petitioner's Motion for Judgment As a Matter of Law (Doc. 15) are denied. An implementing Order follows.