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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL DURHAM, Petitioner, v. THOMAS CARROLL, Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. : : : : : : : : : : :
Civ. Act. No. 07-370-***
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, Michael Durham, has applied for federal habeas relief, filing a habeas
petition challenging his 2003 conviction and sentence for first degree burglary, first degree attempted robbery, and a variety of firearms and other charges. D.I. 1. By the terms of the Court's order, the answer is due to be filed on November 7, 2007. D.I. 14. Yesterday, counsel moved for an additional extension of time until Friday, November 9, 2007. D.I. 15. 2. Pursuant to office policy, all court submissions written by division attorneys must be
reviewed by the Chief of Appeals before filing. Counsel learned today that the Chief of Appeals does not anticipate being in the office this week due to illness and thus additional time is needed to complete the answer and have it reviewed in the ordinary course of business. 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-
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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 determining the period of time that should be allowed s to answer the petition. 4. 5. This is respondents' fourth request for an extension of time in this case. Respondents submit that an extension of time to and including November 16, 2007, in
which to file an answer is reasonable. Respondents submit herewith a proposed order.
DATE: November 8, 2007
/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759
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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 in the custody of the Delaware Department of Correction and appearing pro se, to the subject matter of this motion.
/s/ Elizabeth R. McFarlan Deputy Attorney General Counsel for Respondents
Date: November 8, 2007
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL DURHAM, Petitioner, v. THOMAS CARROLL, Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. : : : : : : : : : : :
Civ. Act. No. 07-370-***
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 16, 2007.
____________________________ United States District Judge
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CERTIFICATE OF SERVICE I hereby certify that on November 8, 2007, I electronically filed a motion for extension of time with the Clerk of Court using CM/ECF. I also hereby certify that on November 8, 2007, I have mailed by United States Postal Service, the same document to the following non-registered participant: Michael Durham SBI No. 161286 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977
/s/ Elizabeth R. McFarlan Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 3759 [email protected]