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Vernon v. Lamarque

February 19, 2010

KENNETH VERNON, PETITIONER,
v.
ANTHONY LAMARQUE,*FN1 RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner with counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. This action proceeds on the March 4, 2008 second amended petition. Currently pending is respondent's March 20, 2009 motion to dismiss and petitioner's April 24, 2009 motion for sanctions.

I. Background

On September 12, 2000, petitioner commenced this action in the United States District Court for the Northern District of California. Dckt. No. 1. On June 12, 2008, United States District Judge Claudia Wilken transferred the case to this district. Dckt. No. 26. In the transfer order, Judge Wilken also denied respondent's motion to vacate the court's May 2, 2008 order, which required respondent to file, within 120 days, either an answer or a motion to dismiss petitioner's second amended petition. Id. The 120 days passed and respondent did not file an answer or a motion to dismiss.

On March 5, 2009, this court issued an order for respondent to, within 15 days, file an answer or a motion to dismiss, and show cause why sanctions should not be imposed for the failure to timely file a response to the petition. Dckt. No. 31. On March 20, 2009, respondent filed a motion to dismiss claims numbered One, Two, and Eight of the second amended petition on the ground that they were filed beyond the one-year statute of limitations.*fn2 Dckt. No. 34. Respondent also filed a response to the order to show cause, explaining that respondent's disobedience of the court's order was inadvertent and accidental rather than willful, and based on a miscommunication between the San Francisco and Sacramento offices of the California Attorney General. Dckt. No. 35. On April 22, 2009, the court discharged the order to show cause. Dckt. No. 39.

On April 24, 2009, petitioner filed an opposition to the motion to dismiss, and argued that since the motion to dismiss was filed late, the court should "deem the proposed procedural defenses waived and [] proceed to the merits of the petition," which the court construed as a motion for sanctions. Dckt. No. 40, 41. On May 11, 2009, respondent filed a reply to petitioner's opposition to the motion to dismiss, as well as an opposition to petitioner's motion for sanctions. Dckt. No. 42. On May 18, 2009, petitioner filed a reply to respondent's opposition to the motion for sanctions. Dckt. No. 43.

The court will first address petitioner's motion for sanctions, as a ruling in petitioner's favor would preclude the court from reaching the issues presented in respondent's motion to dismiss.

II. Petitioner's Motion for Sanctions

Petitioner argues that "[i]n habeas litigation, when the State misses a filing deadline or fails to timely assert a position, . . . the State's procedural defenses are to be deemed waived or, in rare instances, a default judgment may be imposed." Dckt. No. 40 at 2. Therefore, petitioner proposes that the court "deem the State's procedural defenses waived, deny the motion to dismiss on this basis, order the State to file an answer to the petition, and proceed on the merits." Id. at 3.

While a court may, in its discretion, disregard the State's untimely response to a habeas petition or find that the State waives certain procedural defenses, the court finds that such sanctions would be inappropriate here. See, e.g., Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994)(where government's "willful" refusal to file a response nears point of a due process violation, "the district court, rather than entering a default judgment, ordinarily should proceed to the merits of the petition"); Stines v. Martin, 849 F.2d 1323, 1325 (10th Cir. 1988) ("When the Government failed to respond to the petition for habeas corpus relief, the district court was entitled to invoke a sanction appropriate to the circumstances."); Frick v. Quinlin, 631 F.2d 37, 40 (5th Cir. 1980) (district court free to disregard untimely response to habeas petition).

In this case, respondent's counsel indicates that he was unaware of his obligation to file a response to the petition because the San Francisco branch of the Office of the California Attorney General failed to notify the Sacramento branch of this case and of the order requiring a response to the petition. Dckt. No. 35 (Decl. of B. Smiley), ¶ 3. The court notes that the State's apparent inability to properly calendar and comply with deadlines is not an isolated occurrence.*fn3

See, e.g., Jackson v. Hornbeak, No. Civ. 2:08-cv-1753 WBS EFB, Docket No. 31, 34 (respondent failed to appear for hearing on his own motion because counsel failed to calendar the hearing date); Infante v. Haviland, No. Civ. 2:09-cv-0251 GEB EFB, Docket No. 15 (respondent failed to timely file response to petition, apparently due to counsel's "confusion" and failure to calendar due date); McCoy v. Horrel, No. 2:08-cv-0793 JAM EFB, Docket No. 16 (respondent failed to timely file answer to petition because of "oversight" in assigning cases). While the court in no way condones respondent's tardiness, the court must also keep in mind that "a sanction should be proportionate to the wrong." Bleitner, 15 F.3d at 653. Here, the requested sanction is simply not proportionate to respondent's wrong. Precluding respondent from moving to dismiss claims as time-barred by more than four years would not be proportionate to respondent's inadvertent failure to file a timely response, followed by a timely return to the court's order to show cause, accompanied by a response to the petition. Therefore, petitioner's motion for sanctions should be denied.

III. Respondent's Motion to Dismiss

Respondent moves to dismiss claims numbered One, Two, and Eight of the second amended petition on the ground that they are untimely. Petitioner opposes, arguing that he is entitled to statutory and equitable tolling, and that the "law of the case" doctrine requires a finding that the claims are timely. For the reasons stated, the courts recommends that respondent's motion to dismiss be granted.

We have also recognized, however, that "'[i]t is no less good morals and good law that the Government should turn square corners in dealing with the people than that the people should turn square corners in dealing with their government.'" Heckler v. Community Health Services of Crawford Cty., Inc., 467 U.S. 51, 61, n. 13 (1984) (quoting St. Regis Paper Co. v. United States, 368 U.S. 208, 229 (1961) (Black, J., dissenting)). See also Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387-388 (1947) (Jackson, J., dissenting) ("It is very well to say that those who deal with the Government should turn square ...


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