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

Case 1:06-cv-00583-JJF

Document 12

Filed 01/11/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JERMAINE BARNETT, Petitioner, v. THOMAS CARROLL, Warden and JOSEPH R. BIDEN III, Attorney General for the State of Delaware Respondents.1 ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 06-583-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. The petitioner, Jermaine Barnett, 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 January 12, 2007. 2. Responsibility for responding to Mr. Barnett' petition has been assigned to s

another attorney in the Appeals Division. Unfortunately, that attorney is not yet admitted to practice before this Court; however, he will be sworn in on January 18, 2007. Moreover, in the past month, that attorney has prepared numerous answering briefs in state court. Consequently, counsel has been unable to complete the response to Mr. Barnett' petition. Because assigned s counsel has received notice of jury service during the week of January 22, 2007, he anticipates

See Fed.R.Civ.P. 25(d)(1). Attorney General Joseph R. Biden, III, assumed office on January 2, 2007, replacing former Attorney General Carl C. Danberg, an original party to this case.

1

Case 1:06-cv-00583-JJF

Document 12

Filed 01/11/2007

Page 2 of 5

that he will be able to complete the answer by Friday, February 1, 2007. Due to the heavy caseload carried by the Appeals Division attorneys, it would not be practicable to reassign the case to another attorney at this time. 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 s 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 February 2, 2007,

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

/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] DATE: January 11, 2007

Case 1:06-cv-00583-JJF

Document 12

Filed 01/11/2007

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/ Elizabeth R. McFarlan Deputy Attorney General Counsel for Respondents

Date: January 11, 2007

Case 1:06-cv-00583-JJF

Document 12

Filed 01/11/2007

Page 4 of 5

CERTIFICATE OF SERVICE I hereby certify that on January 11, 2007, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on January 11, 2007, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Jermaine Barnett SBI No. 330792 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /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] Date: January 11, 2007

Case 1:06-cv-00583-JJF

Document 12

Filed 01/11/2007

Page 5 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JERMAINE BARNETT, Petitioner, v. THOMAS CARROLL, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) ) ORDER This _____day of _________________________, 2006, 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 February 2, 2007.

Civ.Act.No. 06-583-JJF

____________________________ United States District Judge