Free Motion to Reassign Case - District Court of Delaware - Delaware

Case 1:06-cv-00058-HB

Document 43

Filed 11/05/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS J. CAPANO, Petitioner, v. THOMAS CARROLL, Warden, et al., Respondent. : : : : Civil Action No. 06-58 SLR : : :

PETITIONER'S SECOND MOTION TO ASSIGN A JUDGE TO THE CASE In accordance with Local Rule 40.1, the Petitioner moves the Court to assign the above captioned matter to a Judge of this Court. In support of this Motion, it is further represented as follows: 1. The Petitioner, Thomas J. Capano ("Capano"), has petitioned for Habeas Corpus relief under 28 U.S.C. §2254, challenging his 1999 conviction for first degree murder in the Delaware Superior Court. The Petition was filed on January 30, 2006. (D.I. 1) 2. The case was originally assigned to the Honorable Kent A. Jordan. (D.I. 2). 3. On December 15, 2006, the case was designated to be assigned to the judge who fills the vacancy left by the elevation of Judge Kent A. Jordan to the Third Circuit Court of Appeals. (D.I. 21). 4. Briefing in the case has been completed and the matter is now ripe for decision. 5. On June 7, 2007, Capano filed a Motion which requested the Court to assign a judge to the case. (D.I. 32). On September 19, 2007, the case was assigned to Judge Sue L. Robinson. (No D.I. number assigned). 6. On October 17, 2007, Capano filed a motion seeking the recusal of Judge Robinson. (D.I. 42). On November 2, 2007, the recusal motion was granted by Judge Robinson. (No D.I. number assigned). 7. As a result of the recusal of Judge Robinson, in accordance with Local Rule 40.1, the Court should appoint a new judge to hear the case.

Case 1:06-cv-00058-HB

Document 43

Filed 11/05/2007

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8. Petitioner avers that he has a right to have his Petition considered on the merits without undue or prejudicial delay. See, e.g., Hassine v. Zimmerman, 160 F.3d 941, 953-955 (3d Cir. 1998). Local Rule 7.1.1 Certification The undersigned hereby certifies that he has contacted Elizabeth R. McFarlan, Esquire, counsel for the respondents, who does not object to the Motion.

/s/ Joseph M. Bernstein JOSEPH M. BERNSTEIN (#780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 [email protected] Attorney for Petitioner Dated: November 5, 2007

Case 1:06-cv-00058-HB

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Filed 11/05/2007

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CERTIFICATE OF SERVICE I hereby certify that on November 5, 2007, I electronically filed the foregoing Petitioner's Second Motion to Assign a Judge to the Case with the Clerk of the Court using CM/ECF which will send notification of such filing to the following: Loren C. Meyers, Esquire Elizabeth R. McFarlan, Esquire Department of Justice 820 N. French Street Wilmington, DE 19801 / s/ Joseph M. Bernstein JOSEPH M. BERNSTEIN (Bar #780) 800 N. King Street - Suite 302 Wilmington, DE 19801 302-656-9850 E-mail: [email protected]