Free Order - District Court of Delaware - Delaware

Case 1:04-cv-01363-GMS

Document 10

Filed 03/28/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

JAMES A. WILSON, Petitioner, v. RICHARD KEARNEY, Warden, et. al., Respondents. ) ) ) ) ) ) ) ) )

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Civ. A. No. 04-1363-GMS

ORDER At Wilmington this 21st day of March, 2005; IT IS ORDERED that: 1. Petitioner James A. Wilson's motion for default judgment is DENIED. (D.I. 6.) Whether a default judgment is even available in a habeas corpus proceeding is subject to debate. See Lemons v. O'Sullivan, 54 F.3d 357, 365 (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 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); Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970). Regardless, the record indicates that the respondent never received a copy of the court's December 6, 2004 order to answer Wilson's § 2254 petition. Thus, the respondent's failure to comply with the order does not warrant an entry of default. See Rule 5(a) of the Rules Governing Section 2254 Cases; Fed. R. Civ. P. 55.

Case 1:04-cv-01363-GMS

Document 10

Filed 03/28/2005

Page 2 of 2

2. Wilson's motion for the court to rule on his motion for default judgment is DENIED as moot. (D.I. 7.) 3. The clerk of the court shall serve a copy of this order and a copy of the court's order dated December 6, 2004 (D.I. 5), along with the documents mentioned in the December 6, 2004 order, upon: (1) the above-named Warden of the facility in which petitioner is housed; and (2) the Attorney General of the State of Delaware. 4. The clerk of the court shall send a copy of this order to Wilson.

Gregory M. Sleet /s/ UNITED STATES DISTRICT JUDGE

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