Bermudez v. Reid, Docket No. 83-2272

• Decision Date: 01 November 1983
• Docket Number: Docket No. 83-2272
• Citation: 720 F.2d 748
• Parties: Emilcar BERMUDEZ, Petitioner-Appellee, v. Theodore REID, Superintendent, and Robert Abrams, Attorney General, State of New York, Respondents-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

Page 748

720 F.2d 748

Emilcar BERMUDEZ, Petitioner-Appellee, v. Theodore REID, Superintendent, and Robert Abrams, Attorney

General, State of New York, Respondents-Appellants.

Docket No. 83-2272.

United States Court of Appeals, Second Circuit.

Submitted Oct. 4, 1983.

Decided Nov. 1, 1983.

George C. Perry, Asst. Atty. Gen. of the State of New York, New York City (Robert Abrams, Atty. Gen. of the State of New York, New York City, of counsel), for respondents-appellants.

Emilcar Bermudez, petitioner-appellee, pro se.

Before CARDAMONE, PIERCE and PRATT, Circuit Judges.

PER CURIAM:

While this court rarely uses a formal opinion to dispose of a procedural motion, we think that our denial of the Attorney General's motion for a stay pending appeal warrants written explanation, because the effect of our action is to require the state to release from prison a convicted felon who has served only four of the five years of his minimum sentence. Just as Judge Stewart found below that the Attorney General's inattention to this habeas corpus petition required a default judgment, we, too, feel that respondent's lack of diligence in handling this proceeding, coupled with the absence of irreparable harm and a balance of equities tipping in petitioner's favor, requires denial of this motion for a stay pending appeal.

Petitioner Emilcar Bermudez was convicted in state court of second degree robbery and sentenced to five to ten years' imprisonment for operating a game of "three card monte". The Attorney General tells us that Bermudez had previously been convicted of attempted robbery, attempted assault, and an assortment of gambling and assault convictions, but he offered us no On January 25, 1983 Bermudez filed a petition for habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1976), alleging eight separate grounds for relief. On March 29, 1983 the district court ordered respondents to file an answer within thirty days. On May 9, over a week after the deadline had passed, the Attorney General wrote the district court, seeking a "brief" extension of time until May 20, 1983, because of his heavy work load. Judge Stewart granted the request. In the meantime, Bermudez had moved for summary judgment based on respondents' failure to answer. Since an extension had already been granted when the court received Bermudez's motion, his motion was denied without prejudice to renewal.

further details about those other convictions.

When May 20th passed without any communication from the Attorney General, Bermudez renewed his motion by letter dated May 27, 1983. On June 3, now two weeks after the extension had expired, and without word of any kind having been received from respondents, the district court called the Attorney General's office. Again citing their heavy workload, the Attorney General requested a second extension to file an answer, this time until June 9, 1983. Once more, the court granted the extension, but warned the Attorney General that his "failure to communicate with the court about the overdue answer was deemed troubling." The court told the Attorney General to notify the court if any doubt arose as to his ability to submit an answer by June 9.

On June 16, no answer or further request for an extension of time had been made. The court again called the Attorney General and told him "that his failure to communicate with the court in the face of a now repeatedly overdue answer was deemed a matter of serious concern." Although the Attorney General offered no explanation, the court permitted a third extension, this time to June 24, 1983, a date suggested by the Attorney General, who was told that it was the "final" date by which an answer could be filed. When over a month after the "final" deadline had passed and the Attorney General had not responded in any way, the district court, by formal opinion dated July 28, 1983, 570 F.Supp. 290, granted a default judgment to Bermudez and directed the state to either retry Bermudez within sixty days or release him.

On August 15, respondents moved to vacate the default judgment and for a stay. Both motions were denied by the court. Respondents appealed to this court and moved for a stay of the default judgment pending appeal. On September 26, the last day by which respondents were to have retried Bermudez or released him, a judge of this court granted a temporary restraining order pending consideration of respondents' motion for a stay pending appeal by a full panel of this court.

Judge Stewart granted the default judgment under Fed.R.Civ.P. 55. Recognizing a conflict in other circuits over whether Rule 55 is available in habeas actions, he concluded that a default against the state may be entered "in appropriate circumstances". Circumstances were appropriate in this case, he decided, because: (1) Bermudez had stated at least one valid constitutional claim and his claim had been exhausted in state court; (2) while petitioner had diligently sought to have his claims heard, the Attorney General had been "dilatory in the extreme"; (3) the Attorney General, despite clear admonitions that he do so, had not communicated with the court on the three occasions when he ignored court imposed deadlines; (4) the Attorney General had been dilatory and casual about missing deadlines in the past; and (5) Bermudez had served a substantial amount of his sentence. In these circumstances, the court granted the default judgment stating "the State shall retry or release the petitioner...