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

Case 1:06-cv-00583-JJF

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Filed 12/11/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JERMAINE BARNETT, Petitioner, v. THOMAS CARROLL, Warden and CARL C. DANBERG, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) )

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 December 11, 2006. 2. Counsel has been, and continues to be, diligently working on numerous

cases before this Court and the state courts. However, due to the two vacancies currently in the Appeals Division, the workload for the remaining attorneys has greatly increased. Counsel is doing her best to prioritize cases by date received. Further, the Chief of the Appeals Division must review all filings prior to submission and has been unable to do so. In light of the situation, additional time is needed to complete the answer and have it reviewed in the ordinary course of business.

Case 1:06-cv-00583-JJF

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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, 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 January 12,

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: December 11, 2006

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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/ Elizabeth R. McFarlan Deputy Attorney General

Counsel for Respondents

Date: December 11, 2006

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CERTIFICATE OF SERVICE I hereby certify that on December 11, 2006, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on December 11, 2006, 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: December 11, 2006

Case 1:06-cv-00583-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JERMAINE BARNETT, Petitioner, v. THOMAS CARROLL, Warden and CARL C. DANBERG, 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 January 12, 2007.

Civ.Act.No. 06-583-JJF

____________________________ United States District Judge