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

Case 1:07-cv-00639-GMS

Document 14

Filed 07/07/2008

Page 1 of 5

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

Civ.Act.No. 07-639-GMS

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, Braheem Poteat, has applied for federal habeas relief,

alleging error by the state courts. D.I. 1. By the terms of the Court's order, the answer is due to be filed on July 7, 2008. D.I. 10. 2. Counsel has completed the response to Mr. Poteat' petition. However, s

before the response can be filed, it must be reviewed by the Chief of the Appeals Section, consistent with Department of Justice policy. That individual, unfortunately, is out of the office for much of this week. Counsel now anticipates that review of the response should be completed on or before July 14, 2008. 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

Case 1:07-cv-00639-GMS

Document 14

Filed 07/07/2008

Page 2 of 5

(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 s 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 July 14,

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

/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: July 7, 2008

Case 1:07-cv-00639-GMS

Document 14

Filed 07/07/2008

Page 3 of 5

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: July 7, 2008

Case 1:07-cv-00639-GMS

Document 14

Filed 07/07/2008

Page 4 of 5

CERTIFICATE OF SERVICE I hereby certify that on July 7, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on July 7, 2008, I have mailed by United States Postal Service, the same documents to the following nonregistered participant: Braheem Poteat No. 376102 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: July 7, 2008

Case 1:07-cv-00639-GMS

Document 14

Filed 07/07/2008

Page 5 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BRAHEEM POTEAT, 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 July 14, 2008.

Civ.Act.No. 07-639-GMS

____________________________ United States District Judge