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

Case 1:06-cv-00038-GMS

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Filed 04/07/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE STEPHEN R. WINN, Petitioner, v. THOMAS CARROLL, Warden, CARL C. DANBERG, Attorney General of the State of Delaware, Respondents. : : : : : : : : : : :

Civ. Act. No. 06-038-KAJ

MOTION FOR EXTENSION OF TIME Pursuant to Rule 6 of the Federal Rules of Civil Procedure, the respondents move for an extension of time in which to file an answer to the petition. In support thereof, the respondents state the following: 1. In February 2002, the petitioner, Stephen R. Winn, was convicted by a Delaware Superior Court of first degree rape, first degree kidnaping and related charges for brutally beating with a baseball bat and raping his live-in girlfriend when she informed him that she wanted to end their relationship. The conviction was affirmed on direct appeal. Winn v. State, No. 328, 2002, 2003 WL 1442468 (Del. Mar. 19, 2003). The Superior Court denied Winn's application for post-conviction relief, and that decision was affirmed on appeal. Winn v. State, No. 27, 2005, 2005 WL 3357513 (Del. Dec. 8, 2005). Winn has applied for federal habeas relief, and by the terms of the Court's order, the answer is due to be filed on April 10, 2006. 2. Due to case load and various other matters, undersigned counsel needs additional

time to prepare and file an answer to the petition. In addition to other matters, counsel in the last 45 days has filed a memorandum in a first degree murder case pending post-conviction review in the Superior Court and four federal habeas answers in other cases. Counsel has had no assistance from any support staff because the secretary to the Appeals Division was on an extended medical leave

Case 1:06-cv-00038-GMS

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from December 2005 until the first week of April 2006. Counsel has oral argument before the state supreme court on April 12, 2006, an answering brief due in a first degree murder case pending on direct appeal on April 21, 2006, an answering brief due in another first degree murder case pending on direct appeal on May 1, 2006, and an answer which has received two extensions due on May 1, 2006. Because of this work load, counsel requests the additional time to prepare the answer in this case. 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, 1473-74 & 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's workload" in determining the period of time that should be allowed to answer the petition. 4. This is the respondents' first request for an extension of time in this case. The

requested extension will not result in any prejudice to the petitioner. 5. In light of the above, the respondents submit that an extension of time to and

including May 12, 2006 is reasonable.

/s/ Thomas E. Brown (ID# 3278) Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 e-mail: [email protected] Date: April 7, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE STEPHEN R. WINN, : : Petitioner, : : v. : : THOMAS CARROLL, Warden, : CARL C. DANBERG, : Attorney General of the State of Delaware, : : Respondents. : ORDER This ______ day of _______________, 2006, WHEREAS, respondents having requested an extension of time in which to file an answer to the petition for a writ of habeas corpus, and WHEREAS, it appearing to the Court that the request is timely and good cause has been shown for the extension, IT IS HEREBY ORDERED that respondents' answer shall be filed on or before May 12, 2006.

Civ. Act. No. 06-038-KAJ

_________________________________ United States District Judge

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CERTIFICATE 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/ Thomas E. Brown Deputy Attorney General Del. Dept. of Justice Counsel for Respondents Date: April 7, 2006

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CERTIFICATE OF SERVICE The undersigned, being a member of the Bar of this Court, hereby certifies that on April 7, 2006 he caused to be electronically filed a Motion for Extension of Time with the Clerk of the Court using CM/ECF. I hereby certify that I have also caused to be mailed by first class U.S. Mail two copies of the document to the following non-registered participant, the petitioner: Stephen Winn (No. 177957) Delaware Correctional Center 1181 Paddock Road Smyrna, De 19977.

/s/ Thomas E. Brown Deputy Attorney General Del. Dept. of Justice Counsel for Respondents Date: April 7, 2006