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

Case 1:07-cv-00347-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL M. WOODS, Petitioner, v. PERRY PHELPS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents.1 ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 07-347-JFF

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, Daniel Woods, has applied for federal habeas relief,

alleging error by the state courts. D.I. 2. By the terms of the Court's order, the answer is due to be filed on March 5, 2008. See D.I. 24. 2. Due to an administrative oversight, the undersigned did not file the answer

to Mr. Woods' petition. Due to his own workload, including appearances before every single state criminal court within the next three weeks, counsel needs additional time to complete the answer to Mr. Woods' petition. Counsel now anticipates that the answer should be completed and reviewed, per Department of Justice policy, on or before April 14, 2008.

See Fed.R.Civ.P. 25(d)(1). Perry Phelps was named Warden, effective January 7, 2008.

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' third request for an extension of time in this case. Respondents submit that an extension of time to and including April 14,

2008, in which to file an answer is reasonable. Respondents submit herewith a proposed order.

DATE: March 16, 2008

/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: March 16, 2008

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CERTIFICATE OF SERVICE I hereby certify that on March 16, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on March 17, 2008, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Daniel M. Woods SBI No. 00164728 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: March 17, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL M. WOODS, Petitioner, v. PERRY PHELPS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) ) ORDER This _____day of _________________________, 2006, 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 April 14, 2008.

Civ.Act.No. 07-347-JFF

____________________________ United States District Judge