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Peraza v. Campbell

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 12, 2008

JOHNNIE RAY PERAZA PETITIONER,
v.
ROSANNE CAMPBELL, RESPONDENT.

ORDER

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. On October 8, 2008, the court denied petitioner's motion for default judgment because respondent filed a timely answer on September 8, 2008. Petitioner has filed a motion for reconsideration claiming that respondent failed to serve him with the answer.

Attached to respondent's answer is a declaration of service indicating that respondent properly served petitioner with the answer. Moreover, generally a petitioner is not entitled to a default judgment due to the respondent's 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 the interests of justice, the court will direct respondent to re-serve petitioner with the answer. However, for the reasons discussed herein, petitioner's motion for reconsideration will be denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner's October 27, 2008 motion for reconsideration (Doc. No. 33) is denied;

2. Respondent is directed to re-serve petitioner with the answer; and

3. Petitioner's reply, if any, shall be filed and served within thirty days after service of the answer.

20081112

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