Free Motion for Extension of Time to File Answer - District Court of Delaware - Delaware

Case 1:07-cv-00423-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TYRONE BROOKINS, Petitioner, v. ELIZABETH BURRIS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents.1 ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 07-423-GMS

MOTION FOR EXTENSION OF TIME Pursuant to Rule 6 of the Federal Rules of Civil Procedure, respondents move for an extension of time in which to file an answer to the petition. In support thereof, respondents state the following: 1. The petitioner, Tyrone Brookins, has applied for federal habeas relief,

alleging error by the state courts. D.I. 1. By the terms of the Court's order, the answer is due to be filed on October 31, 2007. 2. The Chief of the Appeals Division is responsible for answering Brookins'

petition for federal habeas relief. Unfortunately, he has been sick for the past several days and has been unable to complete the answer in the ordinary course of business. As a result, he now anticipates that the answer should be completed on or before November 20, 2007.

See Fed.R.Civ.P. 25(d)(1). Elizabeth Burris was named Acting Warden, effective September 1, 2007.

1

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3.

Under Habeas Rule 4, the Court has the discretion to give respondents an

extension of time exceeding the 40-day limit in Civil Rule 81(a)(2). Clutchette v. Rushen, 770 F.2d 1469, 1473-74 & n.4 (9th Cir. 1985); Kramer v. Jenkins, 108 F.R.D. 429, 431-32 (N.D. Ill. 1985). The comment to Rule 4 expressly states that the district court has "the discretion to take into account various factors such as the respondent' workload" in s determining the period of time that should be allowed to answer the petition. 4. 5. This is respondents' second request for an extension of time in this case. Respondents submit that an extension of time to and including November

20, 2007, in which to file an answer is reasonable. Respondents submit herewith a proposed order.

DATE: November 5, 2007

/s/ Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836

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RULE 7.1.1 CERTIFICATION I hereby certify that I have neither sought nor obtained the consent of the petitioner, who is incarcerated and appearing pro se, to the subject matter of this motion.

/s/ Kevin M. Carroll Deputy Attorney General Counsel for Respondents

Date: November 5, 2007

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CERTIFICATE OF SERVICE I hereby certify that on November 5, 2007, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on November 5, 2007, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Tyrone Brookins No. 128849 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836 [email protected] Date: November 5, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE TYRONE BROOKINS, Petitioner, v. THOMAS CARROLL, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) ) ORDER This _____day of _________________________, 2007, WHEREAS, respondents having requested an extension of time in which to file their answer, and WHEREAS, it appearing to the Court that the requested extension is timely made and good cause has been shown for the extension, IT IS HEREBY ORDERED that respondents' answer shall be filed on or before November 5, 2007.

Civ.Act.No. 07-423-GMS

____________________________ United States District Judge