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

Case 1:06-cv-00048-SLR

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Filed 04/24/2006

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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. : JESSE CARTER,

Civ. Act. No. 06-48-SLR

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, Jesse Carter, has applied for federal habeas relief, challenging his 2004

conviction by guilty plea to three counts of first degree robbery and one count of possession of a firearm during the commission of a felony. D.I. 1. By the terms of the Court's order, the answer is due to be filed on April 27, 2006. 2. Within the last two and a half weeks, counsel for respondents has filed an answer to a

federal habeas petition in this Court, as well as an answering brief on a direct appeal of a first degree murder conviction in the Delaware Supreme Court. In addition, the undersigned has been, and continues to be, working on other cases before this Court, the Third Circuit, and the state courts, including two first degree murder cases. 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 and have it reviewed in the ordinary course of

Case 1:06-cv-00048-SLR

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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 June 12, 2006, in

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

DATE: April 24, 2006

/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 incarcerated and appearing pro se, to the subject matter of this motion.

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

Date: April 24, 2006

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CERTIFICATE OF SERVICE I hereby certify that on April 24, 2006, I electronically filed a motion for extension of time and attachments with the Clerk of Court using CM/ECF. I also hereby certify that on April 24, 2006, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Jesse Carter SBI No. 516667 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]

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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. : JESSE CARTER,

Civ. Act. No. 06-48-SLR

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 12, 2006.

____________________________ United States District Judge