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

Case 1:07-cv-00374-GMS

Document 12

Filed 10/26/2007

Page 1 of 5

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

Civ.Act.No. 07-374-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, Glen W. Ducote, 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 26, 2007. 2. Counsel continues to work on the response to the claims petitioner has

raised in his petition. Per division policy, the Chief of the Appeals Division must review all filings prior to submission. Unfortunately, due to his own work load, he has been unable to do so in the instant matter. Counsel now anticipates that review of the response should be completed on or before November 1, 2007.

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

1

Case 1:07-cv-00374-GMS

Document 12

Filed 10/26/2007

Page 2 of 5

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

1, 2007, in which to file an answer is reasonable. Respondents submit herewith a proposed order.

/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: October 26, 2007

Case 1:07-cv-00374-GMS

Document 12

Filed 10/26/2007

Page 3 of 5

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: October 26, 2007

Case 1:07-cv-00374-GMS

Document 12

Filed 10/26/2007

Page 4 of 5

CERTIFICATE OF SERVICE I hereby certify that on October 26, 2007, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on October 26, 2007, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Glen W. Ducote No. 210611 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: October 26, 2007

Case 1:07-cv-00374-GMS

Document 12

Filed 10/26/2007

Page 5 of 5

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

Civ.Act.No. 07-374-GMS

ORDER This _____day of _________________________, 2007, WHEREAS, respondents having requested an extension of time in which to file an 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 1, 2007.

____________________________ United States District Judge