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

Case 1:07-cv-00284-GMS

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Filed 10/24/2007

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

Civ. Act. No. 07-284-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, Steven W. Krafchick, has applied for federal habeas relief, filing a

habeas petition challenging his 2002 conviction by guilty plea and sentence for second degree murder and possession of a deadly weapon during the commission of a felony. D.I. 16. Krafchick has raised four claims in his petition (D.I. 16) and six claims in his accompanying memorandum (D.I. 17). By the terms of the Court's order, the answer is due to be filed on October 29, 2007. D.I. 19. 2. Counsel has been, and continues to be, diligently working on numerous cases before

this Court, the Third Circuit, and the state courts. However, the workload for the Appeals Division

See Fed.R.Civ.P. 25(d)(1). Elizabeth Burris became Acting Warden of Delaware Correctional Center effective October 1, 2007, replacing former Warden Thomas Carroll, an original party to this case.

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attorneys is currently very substantial. Counsel is currently assigned to several first degree murder cases in various stages of postconviction litigation. In fact, counsel presented oral argument to the Delaware Supreme Court today in one of those cases. Counsel is doing her best to prioritize cases by date received. In light of the situation, 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, 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 30, 2007, in

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

DATE: October 24, 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: October 24, 2007

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

Civ. Act. No. 07-284-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 30, 2007.

____________________________ United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on October 24, 2007, I electronically filed a motion for extension of time with the Clerk of Court using CM/ECF. I also hereby certify that on October 24, 2007, I have mailed by United States Postal Service, the same document to the following non-registered participant: Steven w. Krafchick SBI No. 178856 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]