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Gregory Lee Vogelsang v. William Knipp

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


January 29, 2013

GREGORY LEE VOGELSANG, PETITIONER,
v.
WILLIAM KNIPP, RESPONDENT.

FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner moves for default judgment, arguing that respondent failed to timely file an answer. Dckt. No. 18 at 1. Petitioner's motion must be denied.

On October 15, 2012, respondent was ordered to file a response to the petition within 60 days. Dckt. No. 9. Thus, respondent was required to file a response on or before December 15, 2012. See Fed. R. Civ. P. 6(a)(1). However, December 15, 2012, fell on a Saturday. When the filing deadline falls on a Saturday, Sunday, or legal holiday, the period for filing continues to run until the next day that is not a Saturday, Sunday, or legal holiday. Respondent was therefore permitted to file a response to the petition the following Monday, which was December 17, 2012. Since respondent's motion to dismiss was filed on December 17, 2012, it was timely filed. Dckt. No. 17.

Accordingly, it is hereby RECOMMENDED that petitioner's motion for default judgment, Dckt. No. 18, be denied.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases ("The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.").

20130129

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