Free Motion for Extension of Time to File - 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 JOSEPH R. BIDEN, III, : Attorney General for the State of Delaware, : : Respondents. : THOMAS J. CAPANO,

Civ. Act. No. 06-58-***

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 of January 24, 2007, an answering brief is due to be filed on April 16, 2007. D.I. 23. 2. Counsel for respondents have been, and continue to be, diligently working on

numerous cases before this Court and the state courts, including other first degree murder cases. However, the workload for the Appeals Division attorneys is currently very substantial. Due to the complexity of the legal arguments case and counsel'current caseload, additional time is needed to s complete the brief 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, 1473-

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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 respondents' workload" in determining the period of time that should be allowed to answer the petition. 4. 5. This is respondents' first request for an extension of time to file an answering brief. Respondents submit that an extension of time to and including June 8, 2007 in which

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 10, 2007

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RULE 7.1.1 CERTIFICATION I hereby certify that counsel for the petitioner, Joseph M. Bernstein, Esquire, has been contacted and he has no objection to the subject matter of this motion.

/s/ Elizabeth R. McFarlan Deputy Attorney General Counsel for Respondents

Date: April 10, 2007

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

Civ. Act. No. 06-58-***

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' answering brief shall be filed on or before June 8, 2007.

____________________________ United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on April 10, 2007, I electronically filed a motion for extension of time 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]