Zuniga-Castillo v. United States of America

Filing 25

MEMORANDUM DECISION AND ORDER denying 21 Motion for Default Judgment; denying 21 Motion for Summary Judgment ; granting 23 Motion Receive Copy of Respondents Response and for an Extension of Time to file a reply. Petitioner shall have until 1/4/2011 to an optional reply. Signed by Judge Ted Stewart on 10/27/2010. (las)

Zuniga-Castillo v. United States of America

Doc. 25

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION

RAUL ZUNIGA CASTILLO, Petitioner, MEMORANDUM DECISION AND ORDER DENYING MOTION FOR DEFAULT JUDGMENT AND GRANTING PETITIONER'S MOTION TO RECEIVE COPY AND FOR EXTENSION OF TIME

vs.

UNITED STATES OF AMERICA, Respondent.

Case No. 2:09-CV-1127 TS

In this case under 28 U.S.C. § 2255, Petitioner moved for a default judgment against the government for the failure to file its response by the July 16, 2010 date set by the Court. The government responded that it had timely filed its response.1 Petitioner then filed a Motion to Receive a Copy of the response and seeking an extension of time to file his reply.2 He supports his Motion with his Affidavit averring that he never received the response. His position that he never received the government's response is supported

1

Docket No. 22 (citing June 7, 2010 Response). Docket No. 23. 1

2

Dockets.Justia.com

by his August 3, 2010 letter, lodged in the docket on August 20, 2010, inquiring why he had not received an answer by the deadline.3 The certificate of service attached to the government's Response shows that it was served on Petitioner.4 However, it was

apparently never delivered or logged in at the institution's mail room. The government has been contacted by the undersigned's chambers staff and will not file an objection to the present motion for Petitioner to receive a copy and extend the time to file a reply. Therefore, it appearing that Petitioner has never received a copy of the government's response, the Court will grant Petitioner's Motion to receive a copy and to extend the reply time. However, since the government did timely file its response, Petitioner's Motion for Default Judgment or Summary Judgment must be denied. It is therefore ORDERED that Petitioner's Motion to Receive a Copy of Respondent's Response and for an Extension of Time to file a reply (Docket No. 23) is GRANTED. It is further ORDERED that the Clerk of Court shall mail a copy of Docket No. 19, together with all attachments to Petitioner. It is further ORDERED that Petitioner shall have until January 4, 2011, to file an optional reply. It is further

3

Docket No. 20. Docket No. 19, at 2. 2

4

ORDERED that Petitioner's Motion for Default Judgment or Summary Judgment (Docket No. 21) is DENIED. DATED October 27, 2010. BY THE COURT:

_____________________________________ TED STEWART United States District Judge

3