(HC) Jones v. Sullivan ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELIUS L. JONES, No. 2:19-cv-1160 WBS DB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 W. J. SULLIVAN, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se and in forma pauperis with an application 18 for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2014 19 convictions for attempted murder, assault with a deadly weapon, and assault likely to cause great 20 bodily injury. Presently before the court is petitioner’s motion to dismiss and request for counsel. 21 (ECF No. 34.) 22 I. Background 23 On August 31, 2021 the undersigned issued an order to show cause because respondent 24 had failed to timely file an answer or motion to dismiss. (ECF No. 28.) Respondent has filed a 25 response indicating that the failure to timely respond was due to an inadvertent mistake. (ECF 26 No. 30.) Respondent has further indicated that a response to the petition will be filed so as to 27 avoid further delay. The court discharged the order to show cause (ECF No. 31) and respondent 28 filed an answer on September 14, 2021 (ECF No. 32). 1 II. Motion to Dismiss 2 Petitioner has now filed a motion asking the court to dismiss the case based on 3 respondent’s late filed response to the petition. (ECF No. 34.) He states the order show cause 4 was lifted and an answer was filed before he had a chance to go to the law library or prepare a 5 response. (ECF No. 34 at 1.) He claims that if he were to violate time recommendations he 6 would be barred from the courts with prejudice. He argues that any delay should be treated as an 7 abuse of the writ process and thus grounds for dismissal. He requests that the court dismiss the 8 State’s case with prejudice. 9 Because petitioner asks for relief based on respondent’s failure to timely file an answer, 10 the court construes the motion to dismiss as a motion for default judgment. It is clear that a 11 failure by the State to timely file a response to the allegations in a habeas petition does not entitle 12 petitioner to default judgment. See Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) (“failure 13 to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a 14 default judgment”); see also Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994) (respondent’s 15 failure to timely respond to the petition does not entitle petitioner to default); United States ex rel. 16 Mattox v. Scott, 507 F.2d 919, 924 (7th Cir. 1974) (default judgment is not an appropriate remedy 17 for a state’s failure to answer a habeas petition). Additionally, since respondent has already filed 18 an answer petitioner cannot show he was prejudiced by the delay. Thus, the court will 19 recommend that petitioner’s motion be denied. 20 III. Request for Counsel 21 Petitioner asks that if the court will not grant his motion to dismiss the state’s case, that 22 the court appoint him counsel due to the COVID-19 pandemic. (ECF No. 34 at 2.) There 23 currently exists no absolute right to appointment of counsel in habeas proceedings. See Nevius v. 24 Sumner, 105 F.3d 453, 460 (9th Cir. 1996). However, 18 U.S.C. § 3006A authorizes the 25 appointment of counsel at any stage of the case “if the interests of justice so require.” See Rule 26 8(c), Fed. R. Governing § 2254 Cases. In the present case, the court does not find that the 27 interests of justice would be served by the appointment of counsel at the present time. 28 Accordingly, the court will deny petitioner’s request for counsel. 1 IV. Conclusion 2 For the reasons set forth above, IT IS HEREBY ORDERED that petitioner’s request for 3 || counsel (ECF No. 34) is denied. 4 ITIS HEREBY RECOMMENDED that plaintiff’s motion to dismiss (ECF No. 34) be 5 || construed as a motion for default judgment and denied. 6 These findings and recommendations will be submitted to the United States District Judge 7 | assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty days after 8 || being served with these findings and recommendations, any party may file written objections with 9 | the court and serve a copy on all parties. The document should be captioned “Objections to 10 | Magistrate Judge’s Findings and Recommendations.” Any response shall be filed and served 11 || within fourteen days after service of the objections. The parties are advised that failure to file 12 | objections within the specified time may result in a waiver of the right to appeal the district 13 || court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 | Dated: October 14, 2021 15 16 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 DRDB Prisoner Inbox/Habeas/$/jonel 1 60.def 25 26 27 28