White Bird v. Joyce

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Damon John White Bird, 	)
)
)
Petitioner, 	) 	ORDER
)
vs. 	)
)
Joseph Joyce, Warden, 	) 	Case No. 1:26-cv-011
)
Respondent. 	)
Petitioner Damon John White Bird (“White Bird”) initiated the above-captioned action pro
se and in forma pauperis on January 16, 2026, with the filing of a petition for habeas corpus relief
under 28 U.S.C. § 2254. (Doc. Nos. 1 and 2).
On January 20, 2026, the court issued an order directing Respondent to file a response to the
White Bird’s habeas petition by March 20, 2026. (Doc. No. 6).
Respondent failed to file a response to White Bird’s habeas petition as directed by March
20, 2026. Consequently, on April 13, 2026, the court issued an order to show cause. (Doc. No. 13).
Therein, the court gave Respondent a deadline of April 27, 2026, to explain why he failed to file a
response as directed or, alternatively, file a response. Additionally, the court cautioned Respondent
that it would consider recommending the imposition of sanctions should he failed to timely respond
to its order to show cause.
On April 15, 2026, 	White Bird filed a “Dispositive Motion” 	and Motion for Summary
Judgment.” (Doc. Nos. 14 and 15).
On April 27, 2026, Respondent filed a Response to Order to Show Cause. (Doc. No. 21).
Therein, he (1) explained that the order to show cause was his first notice of White Bird’s habeas
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petition, and (2) requested sixty days to file his response.
On April 28, 2026, the court issued an order granting Respondent’s request in part and giving
Plaintiff thirty days to file responses to White Birds habeas petition and pending motions. (Doc. No.
22). The order also gave White Bird the option of filing replies within thirty days of the service and
filing of Respondent’s responses to his habeas petition and motions. (Id.).
On May 8, 2026, White Bird filed what the court construes as a motion to strike
Respondent’s Response to the Order to Show Cause. (Doc. No. 26). Therein White Bird challenged
Respondent’s assertion that he had first learned of the existence of White Bird’s petition upon
receipt of the court’s order to show cause.
On May 8, 2026, White Bird also filed a Petition for Writ of Habeas Corpus Ad
Testificandum. (Doc. No. 27). Therein he requested that the court issue an order commanding his
custodian, the Warden of the North Dakota State Penitentiary, to temporarily produce him so that
he can testify.
The court is disinclined strike Respondent’s Response to the Order to Show Cause. First, the
response to the court’s order to show cause was timely filed. Second, the explanation contained in
the response was plausible. Third, the court’s has a strong preference to address the habeas petition
on the merits. Petitioner’s motion to strike (Doc. No. 26) is therefore DENIED.
White Bird’s Petition for a Writ of Habeas Corpus Ad Testificandum (Doc. No. 27) is
DENIED without prejudice. Although the court appreciates Defendant’s desire to testify in support
of his habeas petition, there are no hearings in this matter presently scheduled.
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IT IS SO ORDERED.
Dated this 27th day of May, 2026.
/s/ Clare R. Hochhalter
Clare R. Hochhalter, Magistrate Judge
United States District Court
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