Opinion
CASE NO. 2:08-cv-1053, CRIM. NO. 2:04-cr-119(3).
July 16, 2009
ORDER
Petitioner, a federal prisoner, has filed the instant motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on petitioner's April 3, 2009, and May 28, 2009, motions for judgment of default. Doc. Nos. 209, 211. Petitioner requests judgment in his favor based upon respondent's failure to respond to his 2255 petition; however, on May 29, 2009, the Court granted respondent's request for an extension of time until July 28, 2009, to file a Return of Writ. Doc. No. 212. Further, entry of judgment of default in federal habeas corpus proceedings based upon the respondent's alleged failure to timely respond to the habeas corpus petition is not appropriate in these proceedings.
[A] default judgment . . . is relief that is unavailable in habeas corpus proceedings. Allen v. Perini, 26 Ohio Misc. 149, 424 F.2d 134, 138 (6th Cir. 1970), superseded on other grounds by statute as stated in, Cobb v. Perini, 832 F.2d 342 (6th Cir. 1987); Lemons v. O'Sullivan, 54 F.3d 357, 364-65 (7th Cir. 1995) ("Default judgment is an extreme sanction that is disfavored in habeas corpus cases."); Gordon v. Duran, 895 F.2d 610, 612 (9th Cir. 1990) ("The failure to respond to claims raised in a petition for habeas corpus does not entitle the petitioner to a default judgment."); Aziz v. Leferve, 830 F.2d 184, 187 (11th Cir. 1987) ("a default judgment is not contemplated in habeas corpus cases").Alder v. Burt, 240 F.Supp.2d 651, 677 (E.D. Michigan 2003). Therefore, petitioner's motions for judgment of default, Doc. Nos. 209, 211, are DENIED..