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

Case 1:06-cv-00058-HB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Petitioner, : : v. : : THOMAS L. CARROLL, : Warden, and CARL C. DANBERG, : Attorney General for the State of Delaware, : : Respondents. : THOMAS J. CAPANO,

Civ. Act. No. 06-58-KAJ

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, Thomas J. Capano, has applied for federal habeas relief, challenging

his 1999 conviction by a Delaware Superior Court jury for first degree murder. D.I. 1. By the terms of the Court's order, the answer is due to be filed on April 17, 2006. 2. Counsel for respondents have been, and continue to be, diligently working on

numerous cases before this Court, the Third Circuit, and the state courts, including other first degree murder cases. However, both counsel have been out of the office recently for medical reasons, and the Appeals Division secretary who had been out on medical leave since mid-December only just returned to the office last week. Moreover, the departure of two deputies from the Appeals Division has increased the workload for the few remaining attorneys. In light of the situation, additional time is needed to complete the answer. 3. Under Habeas Rule 4, the Court has the discretion to give respondents an extension of

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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. request. 6. Respondents submit that an extension of time to and including June 5, 2006, in which This is respondents' first request for an extension of time in this case. Counsel for the petitioner, Joseph M. Bernstein, Esquire, has no objection to this

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

/s/ Loren C. Meyers Chief of Appeals Division Del. Bar. ID No. 2210 /s/ Elizabeth R. McFarlan Deputy Attorney General Del. Bar. ID No. 3759 Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500

DATE: April 11, 2006

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CERTIFICATE OF SERVICE I hereby certify that on April 11, 2006, I electronically filed a motion for extension of time and attachments with the Clerk of Court using CM/ECF which will send notification of such filing to Joseph M. Bernstein, Esq.

/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]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Petitioner, : : v. : : THOMAS L. CARROLL, : Warden, and CARL C. DANBERG, : Attorney General for the State of Delaware, : : Respondents. : THOMAS J. CAPANO,

Civ. Act. No. 06-58-KAJ

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 June 5, 2006.

____________________________ United States District Judge