-SKO (HC)Evans v. Hartley, No. 1:2011cv01424 - Document 25 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that 24 Petitioner's Motion for Default Judgment be DENIED re 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Sheila K. Oberto on 11/9/2011. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)

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-SKO (HC)Evans v. Hartley Doc. 25 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 13 14 15 16 LATIF R. EVANS, ) ) Petitioner, ) ) ) v. ) ) HARTLEY, Warden, Avenal State ) Prison, ) ) Respondent. ) ) ) 1:11-cv—1424-LJO-SKO-HC FINDINGS AND RECOMMENDATION TO DENY PETITIONER’S MOTION FOR DEFAULT JUDGMENT (DOC. 24) DEADLINE FOR FILING OBJECTIONS: THIRTY (30) DAYS AFTER THE DATE OF SERVICE OF THIS ORDER 17 Petitioner is a state prisoner proceeding pro se and in 18 forma pauperis with a petition for writ of habeas corpus pursuant 19 to 28 U.S.C. § 2254. The matter has been referred to the 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and Local 21 Rules 302 and 304. Pending before the Court is Petitioner’s 22 motion for an order to expedite his immediate release, which the 23 Court understands to be Petitioner’s motion for default judgment. 24 The motion was filed on November 2, 2011. 25 I. Background 26 On August 30, 2011, the Court directed Respondent to file a 27 response to the petition no later than sixty days after service 28 1 Dockets.Justia.com 1 of the order. 2 Petitioner and timely filed in this Court a motion for an 3 extension of time to file the response to the petition. 4 November 1, 2011, the Court granted the motion and extended the 5 time for filing the response to the petition for thirty days from 6 service of the order, or until on or about December 5, 2011. 7 November 2, 2011, Petitioner filed a motion for immediate release 8 from custody based on what Petitioner perceived to have been 9 Respondent’s failure to file a timely response to the petition. On October 28, 2011, Respondent served by mail on On On 10 The Court understands this motion to constitute a motion for the 11 entry of a default judgment. 12 Respondent has not responded to the motion for default 13 judgment. 14 documents filed in this case.1 15 is ready for decision. However, the pertinent facts are clear from the The Court finds that the motion 16 II. 17 Here, as detailed above, Respondent timely requested, and Motion for Default Judgment 18 was granted, an extension of time to respond to the petition. 19 The Court thus finds that there has been no inappropriate delay 20 on the part of Respondent in responding to the petition or other 21 failure by Respondent to comply with the Court’s order to 22 respond. 23 default judgment based on delay. 24 25 Accordingly, Petitioner is not entitled to entry of a Further, a petitioner is not entitled to a default judgment where a respondent fails to respond to a petition for writ of 26 27 28 1 The Court may take judicial notice of court records. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th 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 (9th Cir. 1981). 2 1 habeas corpus. 2 writ of habeas shall not extend to a prisoner unless he is in 3 custody in violation of the Constitution, laws, or treaties of 4 the United States. 5 summarily hear and determine the facts and dispose of the matter 6 as law and justice require. 7 petitioner’s burden to show that he is in custody in violation of 8 the laws of the United States. 9 322, 358 n. 3 (2003). Title 28 U.S.C. § 2241(c)(3) provides that the Section 2243 provides that the Court shall It is established that it is the Miller-El v. Cockrell, 537 US. A failure by state officials to comply 10 timely with a deadline set by the Court does not relieve 11 Petitioner of the burden of proof or entitle him to entry of a 12 default or a default judgment. 13 612 (9th Cir. 1990); see also Bleitner v. Welborn, 15 F.3d 652, 14 653 (7th Cir. 1994) (no entitlement to default judgment because 15 of an untimely response); United States ex rel. Mattox v. Scott, 16 507 F.2d 919, 924 (7th Cir. 1974) (late filing of a motion to 17 dismiss did not entitle a petitioner to entry of default); 18 Bermudez v. Reid, 733 F.2d 18, 21 (2nd Cir. 1984) (late filing of 19 an answer did not justify default judgment). Gordon v. Duran, 895 F.2d 610, 20 III. Recommendation 21 Accordingly, pursuant to the foregoing, it is RECOMMENDED 22 23 that Petitioner’s application for default judgment be DENIED. This report and recommendation is submitted to the United 24 States District Court Judge assigned to the case, pursuant to the 25 provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the 26 Local Rules of Practice for the United States District Court, 27 Eastern District of California. 28 being served with a copy, any party may file written objections Within thirty (30) days after 3 1 with the Court and serve a copy on all parties. Such a document 2 should be captioned “Objections to Magistrate Judge’s Findings 3 and Recommendations.” 4 and filed within fourteen (14) days (plus three days if served by 5 mail) after service of the objections. 6 review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 7 (b)(1)(C). 8 objections within the specified time may waive the right to 9 appeal the District Court’s order. 10 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 1153 (9th Cir. 1991). 11 12 IT IS SO ORDERED. 13 Dated: ie14hj November 9, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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