(HC) Garcia v. California Department of Corrections et al, No. 1:2009cv01648 - Document 18 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Petitioner's 13 16 Applications for Default Judgment be Denied signed by Magistrate Judge Sheila K. Oberto on 5/10/2010. Referred to Judge Anthony W. Ishii. Objections to F&R due by 6/14/2010. (Sant Agata, S)

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(HC) Garcia v. California Department of Corrections et al Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 GUILLERMO GARCIA, 11 Petitioner, 12 v. 13 14 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 15 Respondents. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv—1648-AWI-SKO-HC FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S APPLICATIONS FOR DEFAULT JUDGMENT (DOCS. 13, 16) 17 18 Plaintiff is a state prisoner proceeding pro se and in forma 19 pauperis with a petition for writ of habeas corpus pursuant to 28 20 U.S.C. § 2254. 21 Judge pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 72-302 22 and 72-304. 23 applications for default judgment. The matter has been referred to the Magistrate Pending before the Court are Petitioner’s two 24 I. Background 25 On January 4, 2010, the Court directed Respondent to file a 26 response to the petition no later than sixty (60) days after 27 service of the order. 28 mail on Petitioner and timely filed in this Court a motion to On March 4, 2010, Respondent served by 1 Dockets.Justia.com 1 2 dismiss in response to the petition. (Doc. 12, pp. 1, 5.) On March 18, 2010, Petitioner filed a notice and application 3 for default judgment based on Petitioner’s understanding that 4 Respondent had not timely responded to the petition. 5 pp. 1-2.) 6 extension of time within which to respond to the motion to 7 dismiss; Petitioner stated in a declaration that because he had 8 not received the motion to dismiss until April 14, 2010, he had 9 filed the application for default judgment. (Doc. 13, On April 22, 2010, Petitioner filed a motion for an (Doc. 15 p. 2.) 10 Also on April 22, 2010, Petitioner filed another application for 11 default judgment (Doc. 16) in which he referred to Respondent’s 12 failure to answer the petition. 13 Respondent has not responded to the applications for default 14 judgment. 15 finds that the motions are ready for decision. 16 II. Application for Default Judgment 17 Here, as detailed above, the documents filed in this case However, the pertinent facts are clear, and the Court 18 reveal that the Respondent timely responded to the petition. 19 Court thus finds that there has been no delay in the response to 20 the petition. 21 The Further, the filing of a motion to dismiss instead of an 22 answer was authorized by the Court’s order of January 4, 2010, 23 which referred to the possibility of Respondent’s filing a motion 24 to dismiss and set forth a briefing schedule for any such motion. 25 (Doc. 7, p. 2.) It is established that the filing of a motion to 26 dismiss is authorized by Rule 4 of the Rules Governing Section 27 2254 Cases in the District Courts. 28 Notes, 1976 Adoption and 2004 Amendments. 2 Rule 4, Advisory Committee Here, the motion filed 1 by Respondent was based on an absence of a basis for granting 2 federal habeas relief because the Petitioner’s complaint did not 3 affect the legality or duration of his confinement. 4 has limited jurisdiction and is mindful of its continuing duty to 5 determine its own subject matter jurisdiction and to dismiss an 6 action where it appears that the Court lacks jurisdiction. 7 R. Civ. P. 12(h)(3); CSIBI v. Fustos, 670 F.2d 134, 136 n. 3 (9th 8 Cir. 1982) (citing City of Kenosha v. Bruno, 412 U.S. 507, 511- 9 512 (1973)); Billingsley v. C.I.R., 868 F.2d 1081, 1085 (9th Cir. 10 1989). 11 This Court Fed. was appropriate. 12 The Court finds that the filing of a motion to dismiss Finally, the Court notes that in any event, a petitioner is 13 not entitled to a default judgment where a respondent fails to 14 respond timely to a petition for writ of habeas corpus. 15 U.S.C. § 2241(c)(3) provides that the writ of habeas shall not 16 extend to a prisoner unless he is in custody in violation of the 17 Constitution, laws, or treaties of the United States. 18 2243 provides that the Court shall summarily hear and determine 19 the facts and dispose of the matter as law and justice require. 20 Title 28 Section It is established that it is the petitioner’s burden to show 21 that he is in custody in violation of the laws of the United 22 States. 23 failure by state officials to comply timely with the deadlines 24 set by the Court does not relieve Petitioner of this burden of 25 proof or entitle him to entry of a default or a default judgment. 26 Walker v. Johnston, 312 U.S. 275, 286-87 (1941). A Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); see also 27 Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994) (no 28 entitlement to default judgment because of untimely response); 3 1 United States ex rel. Mattox v. Scott, 507 F.2d 919, 924 (7th 2 Cir. 1974) (late filing of motion to dismiss did not entitle a 3 petitioner to entry of default); Bermudez v. Reid, 733 F.2d 18, 4 21 (2nd Cir. 1984) (late filing of answer did not justify default 5 judgment). 6 III. Recommendation 7 Accordingly, pursuant to the foregoing analysis, it is 8 RECOMMENDED that Petitioner’s applications for default judgment 9 be DENIED. 10 This report and recommendation is submitted to the United 11 States District Court Judge assigned to the case, pursuant to the 12 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 13 Local Rules of Practice for the United States District Court, 14 Eastern District of California. 15 being served with a copy, any party may file written objections 16 with the Court and serve a copy on all parties. 17 should be captioned “Objections to Magistrate Judge’s Findings 18 and Recommendations.” 19 and filed within fourteen (14) days (plus three days if served by 20 mail) after service of the objections. 21 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 22 (b)(1)(C). 23 objections within the specified time may waive the right to 24 appeal the District Court’s order. 25 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 26 27 IT IS SO ORDERED. 28 Dated: May 10, 2010 /s/ Sheila K. Oberto 4 1 ie14hj UNITED STATES MAGISTRATE JUDGE 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 27 28 5

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