Mitchell v. Adams
Filing
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ORDER denying 17 Motion for Default granting of Writ of Habeas Corpus signed by Magistrate Judge Michael J. Seng on 6/14/2011. (Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN EDWARD MITCHELL,
1:10-cv-01342-LJO-MJS (HC)
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Petitioner,
ORDER DENYING MOTION FOR
DEFAULT GRANTING OF WRIT OF
HABEAS CORPUS
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v.
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[Doc. 17]
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DERRAL ADAMS, Warden,
Respondent.
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/
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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
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corpus pursuant to 28 U.S.C. ยง 2254. On January 26, 2011, Petitioner filed a motion for
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granting of the writ of habeas corpus due to the alleged procedural default of Respondent.
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Petitioner asserts that Respondent did not timely file an answer to the Petition.
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On November 15, 2010, the Court ordered Respondent to file a response to the
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petition within sixty (60) days. Sixty days after November 15, 2010 is January 14, 2011.
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However, Respondent is entitled to an additional three days for service by mail. See Fed.
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R. Civ. P. 6(d). Additionally, the last day for filing (with the addition of the three days for
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service), is January 17, 2011. As January 17, 2011 is a federal holiday, Respondent had
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until the next day, January 18, 2011, to file a timely response. See Fed. R. Civ. P.
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6(a)(1)(C). Respondent filed an answer on January 18, 2011, and the answer is therefore
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timely.
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///
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As Respondent timely filed an answer to the petition, Respondent is not in
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procedural default and Petitioner's motion is DENIED.
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IT IS SO ORDERED.
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Dated:
92b0h
June 14, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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