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Leroy Moore v. Anthony Hedgepeth

May 1, 2013

LEROY MOORE, PETITIONER,
v.
ANTHONY HEDGEPETH, RESPONDENT.



FINDINGS AND RECOMMENDATIONS

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. Before the court are two motions: petitioner's motion for default judgment filed on December 10, 2012 (ECF No. 12); and respondent's motion to dismiss filed on November 13, 2012 (ECF No. 10).

Petitioner's Motion for Default Judgment

On December 10, 2012, petitioner filed a motion to grant his habeas petition based on respondent's alleged failure to file a response to the amended petition. ECF No. 12. It appears from the motion petitioner seeks entry of default judgment based solely on respondent's alleged late filing.

However, on September 12, 2012, the court directed respondent to file a responsive pleading within sixty days from the date of that order. (ECF No. 4.) On November 13, 2012, respondent timely filed a motion to dismiss pursuant to the court's September 12, 2012, order. (ECF No. 10.) Therefore, petitioner's motion is without merit. Moreover, the failure of respondent to file a timely response to the claims in a habeas corpus petition does not entitle petitioner to default judgment. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); see also Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994) (respondent's failure to timely respond to petition does not entitle the petitioner to default); United States ex rel. Mattox v. Scott, 507 F.2d 919, 924 (7th Cir. 1974) (holding that default judgment is not an appropriate remedy for a state's failure to answer a habeas corpus petition); Bermudez v. Reid, 733 F.2d 18 (2nd Cir. 1984) (failure of state attorney general to comply with court's order to respond not a justification for entering default judgment in favor of petitioner).

For all of these reasons, petitioner's motion for default judgment should be denied.

Respondent's Motion to Dismiss

On September 12, 2012, respondent filed a motion to dismiss, asserting that petitioner is barred by the applicable one-year statute of limitations set by 28 U.S.C. § 2244(d)(1). (ECF No. 10.)

On April 24, 1996, Congress enacted AEDPA which amended 28 U.S.C. § 2244 by adding the following provision:

(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of --

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;

(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;

(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted ...


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