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

Case 1:07-cv-00370-JJF

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Filed 09/06/2007

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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-***

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 September 7, 2007. D.I. 8. 2. Counsel has been, and continues to be, diligently working on numerous cases before However, the workload for the Appeals Division attorneys is

this Court and the state courts.

currently very substantial. Counsel is currently assigned to several first degree murder cases in various stages of postconviction litigation. In addition to her regular caseload, counsel is also involved in the federal class action litigation regarding the lethal injection procedures in Delaware which is scheduled for a week-long trial in early October. In light of the situation, additional time is needed to complete the answer and have it reviewed in the ordinary course of business.

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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, 147374 & 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' first request for an extension of time in this case. Respondents submit that an extension of time to and including November 2, 2007, in

which to file an answer is reasonable. Respondents submit herewith a proposed order.

DATE: September 6, 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: September 6, 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 2, 2007.

____________________________ United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on September 6, 2007, I electronically filed a motion for extension of time with the Clerk of Court using CM/ECF. I also hereby certify that on September 6, 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]