Ware v. Quarterman

Full title: ROBERT DALE WARE, Petitioner v. NATHANIEL QUARTERMAN, Respondent

Court: United States District Court, S.D. Texas, Corpus Christi Division

Date published: Aug 22, 2006

Civil Action No. C-06-258 (S.D. Tex. Aug. 22, 2006)

Opinion

Civil Action No. C-06-258.

August 22, 2006

MEMORANDUM AND RECOMMENDATION

B. ELLINGTON, Magistrate Judge

Petitioner, an inmate at TDCJ-CID's McConnell Unit in Beeville, Texas, filed this petition pro se pursuant to 28 U.S.C. § 2254, challenging disciplinary proceedings brought against him (D.E. 1). An order for service of process was entered June 27, 2006 (D.E. 8). On August 14, 2006, respondent filed his motion to dismiss (D.E. 9). Pending is petitioner's motion for entry of default (D.E. 11).

JURISDICTION

Petitioner was incarcerated at the McConnell Unit in Beeville, Texas, when he filed this petition. According to his petitions, he was convicted in Wichita and Harris Counties. This court has jurisdiction to address the petition pursuant to 28 U.S.C. § 2241(d). Wadsworth v. Johnson, 235 F.3d 959 (5th Cir. 2000).

APPLICABLE LAW

When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend a lawsuit in federal court and that fact is made to appear by affidavit or otherwise, the clerk shall enter the party's default. FED. R. CIV. P. 55(a). Although no Fifth Circuit precedent was located, several circuits have held that the entry of default in habeas corpus proceedings is inappropriate. Allen v. Perini, 424 F.2d 134 (6^th Cir. 1970); Stines v. Martin, 849 F.2d 1323 (10^th Cir. 1988); Aziz v. Leferve, 830 F.2d 184, 187 (11^th Cir. 1987); United States ex rel Mattox v. Scott, 507 F.2d 919 (7^th Cir. 1974); Bermudez v. Reid, 733 F.2d 18 (2d Cir. 1984). Generally, these circuit courts have required the district courts to review the merits, and to grant relief only if the court finds evidence to establish a claim of unlawful detention. Stines, 849 F.2d at 1324. An exception to the general rule would be where the delay itself rises to the level of a due process violation. Id. at 1324 (citing Ruiz v. Cady, 660 F.2d 337, 341 n. 5 (7^th Cir. 1981)). Minor delays do not give rise to a due process violation. Stines, 849 F.2d at 1324.

In any event, it does not appear that entry of default is appropriate here because respondent's appearance and responsive pleading, filed August 14, 2006, were not tardy. 6. Service of process was ordered June 27, 2006. When service is by first class mail, three days are added for service. FED. R. CIV. P. 6(e). Forty-five days from June 30th is August 14th. The pleading was timely filed.

RECOMMENDATION

It is respectfully recommended that petitioner's motions for entry of default (D.E. 11) be denied.