(HC) Gray v. Hartley, No. 1:2008cv00717 - Document 32 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS, signed by Magistrate Judge Sheila K. Oberto on 7/28/10: Recommending that Petitioner's application for default judgment be denied; Petition for Writ of Habeas Corpus 1 and MOTION for Judgment of Default Pursuant to Fed. Rule of Civil Proc. Rule 35(A) & (B) 31 filed by Randall C. Gray referred to Judge Ishii; Objections to F & R due by 8/30/2010, Reply due 14 days (+3 days if served by mail) after service of the objections. (Hellings, J)

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(HC) Gray v. Hartley Doc. 32 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 RANDALL C. GRAY, 9 Petitioner, 10 v. 11 J. D. HARTLEY, Warden, 12 Respondent. 13 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv—00717-AWI-SKO-HC FINDINGS AND RECOMMENDATION TO DENY MOTION FOR DEFAULT JUDGMENT (DOC. 31) OBJECTIONS DUE: THIRTY DAYS 14 15 Plaintiff is a state prisoner proceeding pro se with a 16 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 17 The matter has been referred to the Magistrate Judge pursuant to 18 28 U.S.C. § 636(b)(1) and Local Rules 302 and 304. 19 before the Court is Petitioner’s motion for default judgment 20 filed on July 12, 2010.1 21 I. Background 22 Pending August 14, 2008, the Court directed Respondent to file a 23 response to the petition no later than sixty (60) days after 24 service of the order. On November 12, 2008, Respondent served by 25 26 27 28 1 In filing an answer, Respondent proceeded in accordance with the Court’s order directing a response. Therefore, the Court exercises its discretion to conserve the resources of the Court and the parties by considering and determining Petitioner’s motion for default judgment without requiring any input from Respondent. 1 Dockets.Justia.com 1 mail on Petitioner and timely filed in this Court a motion to 2 dismiss in response to the petition. 3 21, 2009, the motion to dismiss was denied, and a response to the 4 petition was ordered. 5 and filed a timely response to the petition. 6 the merits of the petition, which concerns the constitutionality 7 of a denial of Petitioner’s parole, and also contested the 8 presence of cognizable claims based upon Respondent’s 9 interpretation of the principles governing review of a parole (Doc. 15.) On September On December 21, 2009, Respondent served Respondent briefed 10 decision such as that before the Court in the instant case. 11 Petitioner filed a traverse on March 2, 2010. 12 On July 12, 2010, Petitioner filed a motion for default 13 judgment based on Petitioner’s understanding that Respondent had 14 not timely responded to the petition. (Doc. 31, 2.) 15 Respondent has not responded to the applications for default 16 judgment. 17 documents filed in this case.2 The Court finds that the motions 18 are ready for decision. However, the pertinent facts are clear from the 19 II. Application for Default Judgment 20 With respect to Petitioner’s application, the Court finds 21 that, as detailed above, Respondent timely responded to the 22 petition because the response was filed within the time ordered 23 by the Court. 24 in the response to the petition. 25 The Court thus finds that there has been no delay Further, the initial filing of a motion to dismiss instead 26 27 28 2 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9 th Cir. 1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff’d, 645 F.2d 699 (9 th Cir. 1981). 2 1 of an answer was appropriate and was authorized by the Court’s 2 order of August 14, 2008, which referred to the possibility of 3 Respondent’s filing a motion to dismiss and set forth a briefing 4 schedule for any such motion. (Doc. 4, p. 2.) It is established 5 that the filing of a motion to dismiss is authorized by Rule 4 of 6 the Rules Governing Section 2254 Cases in the District Courts. 7 Rule 4, Advisory Committee Notes, 1976 Adoption and 2004 8 Amendments. 9 In any event, a petitioner is not entitled to a default 10 judgment where a respondent fails to respond to a petition for 11 writ of habeas corpus. 12 that the writ of habeas shall not extend to a prisoner unless he 13 is in custody in violation of the Constitution, laws, or treaties 14 of the United States. 15 summarily hear and determine the facts and dispose of the matter 16 as law and justice require. 17 petitioner’s burden to show that he is in custody in violation of 18 the laws of the United States. 19 322, 358 n. 3 (2003). 20 timely with the deadlines set by the Court does not relieve 21 Petitioner of this burden of proof or entitle him to entry of a 22 default or a default judgment. 23 612 (9th Cir. 1990); see also Bleitner v. Welborn, 15 F.3d 652, 24 653 (7th Cir. 1994) (no entitlement to default judgment because 25 of an untimely response); United States ex rel. Mattox v. Scott, 26 507 F.2d 919, 924 (7th Cir. 1974) (late filing of a motion to 27 dismiss did not entitle a petitioner to entry of default); 28 Bermudez v. Reid, 733 F.2d 18, 21 (2nd Cir. 1984) (late filing of Title 28 U.S.C. § 2241(c)(3) provides Section 2243 provides that the Court shall It is established that it is the Miller-El v. Cockrell, 537 U.S. A failure by state officials to comply Gordon v. Duran, 895 F.2d 610, 3 1 an answer did not justify default judgment). 2 Insofar as Petitioner seeks to proceed to judgment by having 3 the merits of the petition considered, the Court will proceed in 4 due course to consider the merits of the petition. 5 III. Recommendation 6 Accordingly, pursuant to the foregoing analysis, it is 7 RECOMMENDED that Petitioner’s application for default judgment be 8 denied. 9 This report and recommendation is submitted to the United 10 States District Court Judge assigned to the case, pursuant to the 11 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 12 Local Rules of Practice for the United States District Court, 13 Eastern District of California. 14 being served with a copy, any party may file written objections 15 with the Court and serve a copy on all parties. 16 should be captioned “Objections to Magistrate Judge’s Findings 17 and Recommendations.” 18 and filed within fourteen (14) days (plus three days if served by 19 mail) after service of the objections. 20 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 21 (B)(1)(C). 22 objections within the specified time may waive the right to 23 appeal the District Court’s order. 24 1153 (9th Cir. 1991). Within thirty (30) days after Such a document Replies to the objections shall be served The Court will then The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 25 26 IT IS SO ORDERED. 27 Dated: ie14hj July 28, 2010 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 4

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