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

Case 1:07-cv-00838-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL YOST, Petitioner, v. RAPHAEL WILLIAMS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 07-838-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. Michael Yost has applied for federal habeas relief, alleging error by the

state courts. D.I. 1. By order of this Court, respondents' answer is due to be filed on March 17, 2008. D.I. 7. 2. Counsel has been, and continues to be, diligently working on respondents'

answer to Mr. Yost's petition. Unfortunately, counsel has learned that the Delaware Superior Court Prothonotary has been unable to locate the files necessary to respond to Mr. Yost's claims. Counsel has requested the files and anticipates that they will be available within the next week. In the event that the Superior Court is unable to provide copies, counsel will contact the Delaware Supreme Court in an effort to obtain the needed documents.

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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, 43132 (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. 5. This is respondents' second request for an extension of time in this case. Respondents submit that an extension of time to and including May 15,

2008, in which to file an answer is reasonable. Respondents submit herewith a proposed order.

DATE: April 14, 2008

/s/ Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836

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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/ Kevin M. Carroll Deputy Attorney General Counsel for Respondents

Date: April 14, 2008

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CERTIFICATE OF SERVICE I hereby certify that on April 14, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on April 14, 2008, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Michael Yost No. 323984 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 /s/ Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836 [email protected] Date: April 14, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MICHAEL YOST, Petitioner, v. RAPHAEL WILLIAMS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) ) ORDER This _____day of _________________________, 2008, 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 May 15, 2008.

Civ.Act.No. 07-838-SLR

____________________________ United States District Judge