(HC) Harrell v. Hill

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA JOSHUA NEIL HARRELL, No. 2:20-cv-00060 JAM GGH P 12 Petitioner, 13 v. ORDER RICK HILL, 15 Respondent.

17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has filed a motion for reconsideration of the undersigned’s March 20, 2022 order and a motion for default judgment.

20 ECF Nos. 15, 16.

21 On January 22, 2020, the court directed respondent to file a response to petitioner’s habeas petition. ECF No. 5. On March 17, 2020, respondent filed a motion for a 60-day extension of time in which to file and serve a response to the petition for writ of habeas corpus. ECF No. 11.

24 On March 18, 2020, respondent filed a corrected certificate of service for the motion for extension of time. ECF No. 13. On March 20, 2020, the undersigned granted respondent’s request for an extension of time to and including May 22, 2020. ECF No. 14.

27 Motion for Reconsideration 28 Petitioner has filed a motion for reconsideration of this court’s order filed March 20, 2022 granting respondent a 60-day extension of time. ECF No. 15. Petitioner alleges respondent’s service of the motion for extension of time based on a defective certificate of service makes the motion ineffective and respondent’s responsive pleading late. Although petitioner did initially file the incorrect certificate of service for the motion for extension of time, ECF No. 12, respondent corrected and refiled the certificate of service. See ECF No. 13. Petitioner has failed to demonstrate any new or different facts or circumstances which did not exist or were not shown upon the prior motion. See E.D. Local Rule 230(j). Accordingly, the motion for reconsideration is denied.

9 Motion for Default Judgment 10 Petitioner contends that respondent’s failure to file a timely response to the petition entitles him to a default judgment. ECF No. 16. Generally, petitioner is not entitled to a default judgment for the failure to respond to claims raised in a petition for habeas corpus. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990). In addition, respondent has filed an extension of time to file responsive pleading. This deadline has not passed, and respondent is still within the time permitted to file a responsive pleading. Accordingly, petitioner’s motion for default judgment will be denied.

17 Review of This Order 18 Any review of the undersigned’s initial order, or this motion for reconsiderations shall be directed to the assigned district judge within fourteen days of the filed date of this order.

20 Accordingly, IT IS HEREBY ORDERED that: 21 1. Petitioner’s motion for reconsideration of the undersigned’s March 20, 2022 order (ECF No. 15) is denied; 23 2. Petitioner’s motion for default judgment (ECF No. 16) is denied; and 24 3. Any review of the undersigned’s initial order, or this motion for reconsiderations shall be directed to the assigned district judge within fourteen days of the filed date of this order.

26 Dated: April 27, 2020 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE