Morris v. McKenna

Filing 17

ORDER granting 11 Motion for Extension of Time to File an Answer by Judge J Richard Creatura.(JLP)(copy mailed to Plft.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The underlying Petition for a Writ of Habeas Corpus has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1)(A) and 636 (b)(1)(B), and Local Magistrate Judge's Rule MJR3 and MJR4. Petitioner is seeking federal habeas relief, pursuant to 28 U.S.C. § 2254. Before the court is Respondent's motion for a ten-day extension to file the answer (Dkt. # 11). Counsel asks for the extension so that Respondent can obtain files from federal prison. Petitioner opposes the extension and asks for judgment in his favor (Dkt. # 14). ORDER - 1 TEDDY MORRIS, v. ROB McKENNA, Respondent. Case No. C09-5345RBL ORDER GRANTING RESPONDENT'S REQUEST FOR AN EXTENSION OF TIME TO FILE AN ANSWER UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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The Ninth Circuit has expressly declared that a habeas corpus petitioner is not entitled to default judgment. Gordan v. Duran, 895 F.2d 610 (9th Cir. 1990). The habeas petitioner still bears the burden of showing that he or she is in custody in violation of the constitution. Absent such a showing, the petitioner is not entitled to relief. Id. See also, Bermudez v. Reid, 733 F.2d 18, 21 (2nd Cir.), cert. denied, 469 U.S. 874 (1984); Broussard v. Lippman, 643 F.2d 1131 (5th Cir.), cert. denied, 452 U.S. 920 (1981); Goodman v. Keohane, 663 F.2d 1033, 1047 n. 4 (11th Cir. 1981); Allen v. Perini, 424 F.2d 134, 138 (6th Cir.), cert. denied, 400 U.S. 906 (1970); Ruiz v. Cady, 660 F.2d 337, 341 (7th Cir. 1981). Respondent has shown good cause for a ten-day extension of time. Significantly, the answer has now been filed, (Dkt. # 12) and is noted for consideration on September 25, 2009. The motion for a ten-day extension of time is GRANTED. The Clerk is directed to mail a copy of this Order to petitioner and to remove Dkt. # 11 from the Court's Calendar. Dated this 8th day of September 2009.

A
J. Richard Creatura United States Magistrate Judge

ORDER - 2