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

Case 1:05-cv-00883-SLR

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Filed 04/11/2006

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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. : DWIGHT W.H. PERKINS, JR.,

Civ. Act. No. 05-883-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, Dwight W.H. Perkins, Jr., has applied for federal habeas relief,

challenging the October 2005 dismissal of a writ of mandamus by the Delaware Supreme Court and his detention under a March 2005 indictment for robbery and related offenses. D.I. 2, 4. By the terms of the Court's March 10, 2006 order, the answer is due to be filed on April 13, 2006. 2. Since March 10th, counsel for respondents has filed two answering briefs in cases

before the Delaware Supreme Court, one involving complex issues and the other relating to a first degree murder conviction, as well as an answer to a Rule 26(c) brief. In addition, counsel has assisted in filing two answers to federal habeas petitions in this Court. Moreover, the undersigned has been, and continues to be, working on other cases before this Court, the Third Circuit Court of Appeals and the state courts. The Appeals Division secretary, out of the office since mid-December , only just returned to work last week. Finally, the departure of two deputies from the Appeals

Case 1:05-cv-00883-SLR

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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 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, 1473-74 & 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 s allowed 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 April 24, 2006, in

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

DATE: April 11, 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

Case 1:05-cv-00883-SLR

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CERTIFICATE OF SERVICE I hereby certify that on April 11, 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 11, 2006, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Dwight W.H. Perkins, Jr. SBI 29328 Sussex Correctional Institution P.O. Box 500 Georgetown, DE 19947

/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]