Free Motion for Leave to Appeal in forma pauperis - District Court of Delaware - Delaware

Case 1:07-cv-00740-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMAR WHITE, Petitioner, v. PERRY PHELPS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents.1 ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 07-740-JJF

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. Jamar White 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 February 25, 2008. D.I. 7. 2. Counsel has been, and continues to be, diligently working on respondents'

answer to Mr. White's petition. Unfortunately, more time is required to complete the answer and to have it reviewed, per Department policy, in the ordinary course of business. Over the past several weeks, counsel has been handling several calendars a week in the Court of Common Pleas and Justice of the Peace Court in addition to his regular responsibilities handling matters before the Delaware Superior Court and

See Fed.R.Civ.P. 25(d)(1). Perry Phelps was named Warden, effective January 7, 2008.

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Supreme Court. Additionally, counsel will be in the Delaware Court of Common Pleas on Monday, February 25, 2008 for a jury trial calendar in the morning and then for an arraignment calendar in the afternoon. Furthermore, counsel will be out of the office from March 4th through March 6th for a training event outside of the State. As a result, more time is needed to complete respondents' 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, 1473-74 & 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. 5. This is respondents' first request for an extension of time in this case. Respondents submit that an extension of time to and including March 14,

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

DATE: February 22, 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: February 22, 2008

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CERTIFICATE OF SERVICE I hereby certify that on February 22, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on February 22, 2008, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Jamar White No. 414978 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /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: February 22, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMAR WHITE, Petitioner, v. PERRY PHELPS, 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 March 14, 2008.

Civ.Act.No. 07-740-JJF

____________________________ United States District Judge