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July 28, 1983

THEODORE REID, Superintendent, and ROBERT ABRAMS, Attorney General, Respondents.

The opinion of the court was delivered by: STEWART


STEWART, District Judge:

 For reasons explained more fully below, we have before us what we take to be a motion for a default judgment by a habeas corpus petitioner. The petitioner, a state prisoner, was convicted in 1979 of Second Degree Robbery and has served four years *fn1" of a five to ten year sentence. Despite conflicting authority as to whether default judgments may be entered in habeas actions, we have concluded that the motion should be granted.

 On March 29, 1983, this court ordered respondents to answer petitioner's petition within 30 days. By letter dated May 9, 1983, more than a week after the deadline had run, an Assistant Attorney General ("Assistant"), identifying himself as counsel for respondents, sought "a brief extension" of time in which to answer the petition. *fn2" The Assistant cited a heavy workload in requesting the extension. An extension was granted until May 20, 1983, the date requested in the Assistant's letter.

 Just after the 30 day deadline had run, the petitioner moved for summary judgment on the ground that an answer was overdue. The extension having been granted, the motion was denied on May 11, 1983, with leave to renew.

 In a letter to the court dated May 27, petitioner did renew his motion for summary judgment, again claiming entitlement to relief because an answer from respondents was overdue. A copy of the letter was apparently sent to the Assistant. *fn3" No word of any kind having been received, chambers called the Assistant on June 3, now two weeks since the extension had run. The Assistant again indicated that he was overburdened with work (particularly habeas petitions) and requested that he be allowed until June 9, 1983 to file an answer. The extension was granted, however the Assistant was advised that his failure to communicate with the court about the overdue answer was deemed troubling. The Assistant was also told that should there be any doubt as to his ability to submit an answer by June 9, he should notify the court.

 On June 16, there having been neither an answer filed nor an extension sought, chambers again called the Assistant. The Assistant was told that his failure to communicate with the court in the face of a now repeatedly overdue answer was deemed a matter of serious concern. No explanation was offered. An extension of time to file an answer was granted until June 24, a date suggested by the Assistant. The Assistant was warned that the new deadline was the "final" date by which to file his answer. To date, a month since the "final" deadline has run, no answer has been filed and neither the Assistant nor any one else from the Attorney General's Office has contacted chambers with regard to the case. Four months have elapsed since respondents were first ordered to file their answer.

 Rule 55 of the Fed. R. Civ. P. provides for entry of a judgment by default "[w]hen a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules." We think this rule best describes the relief which petitioner seeks and accordingly treat his motion for summary judgment as an application for entry of a judgment by default. See Witt v. Arizona, 343 F. Supp. 392, 393 (D. Ariz. 1972). *fn4" The question before us is whether we may grant this application.

 Two lines of authority have emerged on the issue of whether a Rule 55 default may be entered in habeas proceedings. The Sixth Circuit first addressed the question in Allen v. Perini, 424 F.2d 134 (6th Cir. 1970), cert. denied, 400 U.S. 906, 27 L. Ed. 2d 143, 91 S. Ct. 147, where it held that a seven day delay by the State in filing an answer did not relieve the prisoner of his "burden to show that he is in custody in violation of the Constitution." Id. at 138. "Despite the delinquency of the State, the District Court was obligated to decide the case on the merits. . . . We hold that Rule 55(a) has no application in habeas corpus cases. . . ." Id. The obligation of the district court to "decide the case on the merits," the Allen court held, requires that it hold "an evidentiary hearing . . . [in which] the averments of the petition have been proved by competent evidence." Id. The Sixth Circuit reaffirmed this view in Watmuff v. Perini, 427 F.2d 527, 528 (6th Cir. 1970), and both the Fifth Circuit, Broussard v. Lippman, 643 F.2d 1131, 1134 (5th Cir. 1981), cert. denied, 452 U.S. 920, 69 L. Ed. 2d 425, 101 S. Ct. 3059 (parole board's eight day delay in filing report "standing alone, does not provide a sufficient basis for granting the writ"); but see Frick v. Quinlin, 631 F.2d 37, 40 (5th Cir. 1980) (court free to disregard tardy answer to petition), and the Eleventh Circuit, Goodman v. Keohane, 663 F.2d 1044, 1047 n.4 (11th Cir. 1981) (no reason given), have indicated an apparent intention to adhere Allen's bright line rule.

 While the Fifth, Sixth and Eleventh Circuits seem to reject any application of Rule 55 to habeas proceedings, other courts have taken a less rigid approach and found that the question is left to the district court's sound discretion. In Ruiz v. Cady, 660 F.2d 337 (7th Cir. 1981), for example, the Seventh Circuit reversed a district court's grant of judgment by default finding an abuse of that discretion where only a five day delay was attributable to the state. See id. at 341. Nevertheless, the court expressly rejected the Allen v. Perini approach, id. at 340-41, n.5, and concluded that default "should be preserved as a sanction against a respondent's unwarranted delay." Id. at 340. See also Troglin v. Clanon, 378 F. Supp. 273, 280 (N.D. Cal. 1974); Witt v. Arizona, 343 F. Supp. 392, 393-94 (D. Ariz. 1972); Winn v. Page, 311 F. Supp. 691, 692-93 (W.D. Okla. 1970).

 We agree with the cases which find that Rule 55 is available in habeas actions, and that default may be entered in appropriate circumstances. We note at the outset that Rule 55 appears applicable to habeas petitions by its own terms. The rule states, "when a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend as provided by these rules" default shall be entered. Rule 81(a)(2) provides that a return shall be filed within not more than 40 days. Thus, since the federal rules of civil procedure to prescribe how respondents are to "defend" in a habeas action, Rule 55 appears applicable.

 Of relevance too is Rule 11 of the recently enacted Rules Governing § 2254 cases, 28 U.S.C. foll. § 2254 (1976) which provides, "The Federal Rules of Civil Procedure, to the extent they are not inconsistent with these rules, may be applied, when appropriate, to petitions filed under these rules." According to the Advisory Committee Note to Rule 11:

 Rule 11 . . . allow[s] the court considering the petition to use any of the rules of civil procedure (unless inconsistent with these rules of habeas corpus) when in its discretion the court decides they are appropriate under the circumstances of the particular case. The court does not have to rigidly apply rules which would be inconsistent or inequitable in the overall framework of habeas corpus. Rule 11 merely recognizes and affirms their discretionary power to use their judgment in promoting the ends of justice.

 Since there is nothing "inconsistent" between Fed. R. Civ. P. 55 and "these rules of habeas corpus" (the Rules Governing § 2254 cases), the question of whether Rule 55 should be found applicable appears to turn on whether, as a matter of ...

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