Opinion
No. CIV S-06-1231 RRB EFB P.
August 14, 2007
ORDER
Plaintiff is a state prisoner without counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He filed his petition on June 6, 2006, initiating the present action. On August 2, 2006, the court directed respondent to file an answer within 45 days. Respondent failed to do so. On November 15, 2006, the court issued an order to show cause requiring respondent to submit an explanation for the failure to comply within 15 days. Again, respondent failed to comply with that order and petitioner filed a motion for default judgment on December 15, 2006.
Respondent finally filed a response to the order to show cause on December 27, 2006, together with a motion to dismiss. In her response, respondent acknowledges the error in failing to respond and explains that through inadvertence both the petition and the Order to Show Cause, which were served on the Appeals and Writs section of the California Attorney General's office, were never routed to the appropriate section within that Office. Although the error in processing documents served on the Office of the Attorney General does not excuse the failure to comply with a court order, the court is satisfied that the sanction of a default judgment is not appropriate here. Accordingly, the court will address the case on its merits and respondent's motion to dismiss is deemed timely filed.
Petitioner filed a response in opposition to the motion to dismiss on February 14, 2007.
For these reasons, IT IS HEREBY ORDERED that petitioner's December 15, 2006, motion for default judgment is denied.