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 of April 12, 2006, the answer is due to be filed on June 5, 2006. D.I. 9. 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, the departure of three deputies from the Appeals Division has increased the workload for the few remaining attorneys. Two new deputies have accepted positions in the Appeals Division, but one will not be able to begin work until July and the other will begin in August. 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

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 respondent'workload" in determining the period of time that should be allowed s to answer the petition. 4. 5. This is respondents' second request for an extension of time in this case. Respondents submit that an extension of time to and including July 28, 2006, 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: June 2, 2006

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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: June 2, 2006

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CERTIFICATE OF SERVICE I hereby certify that on June 2, 2006, I electronically filed a motion for extension of time and attachment 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 July 28, 2006.

____________________________ United States District Judge