Free Motion for Extension of Time - District Court of Delaware - Delaware

Case 1:07-cv-00472-GMS

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Filed 11/30/2007

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

MICHAEL MANLEY, Petitioner v. CARL C. DANBERG, Commissioner, Delaware Department of Correction; and THOMAS L. CARROLL, Warden, Delaware Correctional Center at Smyrna, Respondents

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CIVIL DOCKET: 1:07-CV-00472 CAPITAL HABEAS

JUDGE GREGORY M. SLEET Electronically Filed

PETITIONER'S MOTION FOR AN ADDITIONAL FORTY-FIVE DAYS IN WHICH TO FILE HIS PETITION FOR A WRIT OF HABEAS CORPUS ________________________________________________________________________ Petitioner, MICHAEL MANLEY, respectfully requests an additional forty-five (45) days in which to investigate and prepare Petitioner's first counseled Petition for Writ of Habeas Corpus. In support of this motion, Petitioner states the following: 1. On July 30, 2007, Petitioner filed a Motion for Appointment of Federal Habeas

Corpus Counsel under 21 U.S.C. § 848(q)(4), and Leave to Proceed In Forma Pauperis. 2. On August 14, 2007, the Court entered an Order: granting Petitioner's request to

proceed in forma pauperis, appointing undersigned counsel to represent Petitioner, and granting Petitioner 120 days to file his Petition for Writ of Habeas Corpus, or, on December 12, 2007. 3. Habeas corpus is not simply an appellate proceeding, but rather an original civil

action in a federal court. See, e.g., Browder v. Director, Illinois Dept. of Corrections, 434 U.S. 257, 269 (1978); Neely v. United States, 546 F.2d 1059, 1065 (3d Cir. 1976). A proper, 1

Case 1:07-cv-00472-GMS

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counseled habeas petition can be prepared only after counsel has both reviewed the existing record and conducted an exhaustive extra-record investigation of the case. 4. Since being appointed, undersigned counsel have worked diligently to obtain the

record of the case from prior counsel and other sources, to obtain prior defense counsel's files, to review the state court record and counsel's files, and to conduct the necessary independent investigation of the facts that collectively are a prerequisite to identifying, developing, and preparing Petitioner's claims in this capital case. 5. Habeas counsel have made substantial progress in reviewing the record, counsel's

files, and conducting an independent investigation. However, as a result both of the complexity of the case and counsel's other obligations, counsel do not expect to be able to complete their required review and investigation in time to file a professionally appropriate counseled petition by the present due date of December 12, 2007. Accordingly, Petitioner respectfully requests an additional forty-five (45) days in which to file his petition. 6. By way of illustration, Petitioner sets forth below counsel's other recent work

during the investigation and preparation of the habeas petition in this case: 7. Counsel's obligations since being appointed include: the filing of a brief in

opposition to Respondents' appeal of order granting discovery in Chambers v. Beard, Civil No. 3:06-0980 (M.D. Pa. Sept. 4, 2007) (Nealon, D.J.) (non-capital); the filing of a reply brief to Respondents' brief in opposition to Petitioner's habeas in Young v. Grace, Civil No. 3:07-CV016 (M.D. Pa. Sept. 19, 2007) (Vanaskie, J.) (non-capital); the filing of amendments and a discovery motion in Bridges v. Beard, Civil No. 2:06-cv-00268 (E.D. Pa. Oct. 31, 2007) (Brody, J.) (capital); and the filing of a memorandum of law in support of the habeas petition in Marinelli 2

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v. Beard, No. 4:07-cv-00173 (M.D. Pa. Nov. 13, 2007) (Jones, J.)

Attorney Saunders also has

a reply/traverse presently due in Spotz v. Beard, No. 3:06-cv-955 (M.D. Pa.) (Munley, J.) (capital) on December 7, 2007. 8. Accordingly, Petitioner respectfully requests an additional forty-five (45) days in

order to file the Petition for a Writ of Habeas Corpus. 9. This request is made in good faith because of counsel's ethical obligations to

provide professionally appropriate representation in this capital case and is not predicated on any intent to delay. 10. Pursuant to D. Del. LR 7.1.1, counsel has contacted counsel for Respondents,

Deputy Attorney General Loren C. Myers, and left messages seeking agreement in this Motion. As of the time of filing, counsel has not yet heard back from Respondents on this request 11. Pursuant to D.Del. LR 16.4(b), counsel hereby certifies that a copy of this Motion

has been sent to Petitioner.

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WHEREFORE, for the above reasons, Petitioner respectfully requests that the Court grant Petitioner an additional forty-five days, or until January 26, 2008 to file his Petition for a Writ of Habeas Corpus.

Respectfully submitted,

Date: November 30, 2007

s/ Anne L. Saunders ANNE L. SAUNDERS, ESQUIRE Asst. Federal Public Defender Attorney ID #PA 48458 BETH ANN MUHLHAUSER, ESQUIRE , Asst. Federal Public Defender Attorney ID #PA 74181 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-3843 Fax No. (717) 782-3966 ([email protected]) ([email protected]) Attorneys for Michael Manley

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CERTIFICATE OF SERVICE

I, Beth A. Muhlhauser, of the Federal Public Defender's Office do hereby certify that on this date I served a copy of the foregoing Motion by placing a copy in the United States mail, first class, in Harrisburg, Pennsylvania, addressed to the following:

Loren C. Meyers, Esquire Deputy Attorney General 820 North French Street, 7th Floor Wilmington, DE 19801

Date: November30, 2007

Respectfully submitted,

By: s/ Beth Ann Muhlhauser BETH ANN MUHLHAUSER, ESQUIRE Asst. Federal Public Defender Attorney ID #PA 74181 100 Chestnut Street, Suite 306 Harrisburg, PA 17101 Tel. No. (717) 782-3843 Fax. No. (717) 782-3966 Email: [email protected] Attorney for Michael Manley

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