(HC) Mickling v. Trate ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE MICKLING, No. 1:22-cv-00010-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE TO CASE 13 v. FINDINGS AND RECOMMENDATION TO 14 WARDEN TRATE, DENY MOTION FOR DEFAULT 15 Respondent. [Doc. 9] 16 17 Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2241. 19 On March 10, 2022, Petitioner filed a motion to enter default judgment. (Doc. 9.) 20 Petitioner contends that Respondent failed to file an answer in compliance with the Court’s order 21 of January 5, 2022, which had directed Respondent to file an answer within sixty (60) days. 22 Petitioner is incorrect because on March 4, 2022, Respondent requested and was granted an 23 extension of 45 days within which to file an answer. (Docs. 7, 8.) As the deadline to file an 24 answer was extended, Petitioner’s motion for default judgment must be dismissed. 25 The Court notes that even if Respondent had failed to timely file an answer, Petitioner 26 would not be entitled to default. Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990); see also 27 Bleitner v. Welborn, 15 F.3d 652, 653 (7th Cir. 1994). 28 1 ORDER 2 IT IS HEREBY ORDERED that the Clerk of Court is DIRECTED to assign a District 3 Judge to this case. 4 RECOMMENDATION 5 For the foregoing reasons, the Court RECOMMENDS that Petitioner’s motion for default 6 judgment be DENIED. 7 This Findings and Recommendation is submitted to the assigned district judge pursuant to 8 the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72-304 of the Local Rules of Practice 9 for the United States District Court, Eastern District of California. Within twenty-one (21) days 10 after being served with a copy, any party may file written objections with the Court and serve a 11 copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendation.” Replies to the objections shall be served and filed within ten 13 (10) court days (plus three days if served by mail) after service of the objections. The Court will 14 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are 15 advised that failure to file objections within the specified time may waive the right to appeal the 16 District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 19 Dated: March 14, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28