(HC) Banks v. Sherman ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY BANKS, Case No. 1:20-cv-01225-DAD-EPG-HC 12 Petitioner, ORDER DENYING PETITIONER’S MOTION FOR DEFAULT 13 v. (ECF No. 18) 14 STU SHERMAN, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 On November 10, 2020, Respondent filed a motion to dismiss the petition. (ECF No. 11). 20 On January 8, 2021, the Court received the instant motion for default, in which Petitioner argues 21 that Respondent did not comply with this Court’s order because Respondent filed a motion to 22 dismiss instead of an answer addressing the merits of Petitioner’s claims. (ECF No. 18). 23 In the September 10, 2020 order to respond, the Court ordered in pertinent part: 24 1. Within SIXTY (60) days of the date of service of this order, Respondent SHALL FILE a RESPONSE to the Petition. See 25 Rule 4, Rules Governing Section 2254 Cases; Cluchette v. Rushen, 770 F.2d 1469, 1473-74 (9th Cir. 1985) (court has 26 discretion to fix time for filing a response). A Response can be made by filing one of the following: 27 A. AN ANSWER addressing the merits of the Petition. 1 procedurally defaulted a clam SHALL BE MADE in the ANSWER, but must also address the merits of the claim 2 asserted. 3 B. A MOTION TO DISMISS the Petition. 4 | (ECF No. 6 at 1-2). 5 As the Court’s order permitted Respondent to file a motion to dismiss rather than an 6 | answer, the Court finds that default is not warranted. Accordingly, the Court HEREBY ORDERS 7 | that Petitioner’s motion for default (ECF No. 18) is DENIED. 8 9 IT IS SO ORDERED. 10| Dated: _ January 12, 2021 □□□ hey — i UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28