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

Case 1:06-cv-00578-GMS

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Filed 02/01/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMES E. ALLEN, Petitioner, v. THOMAS CARROLL, Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents.1 : : : : : : : : : : :

Civ. Act. No. 06-578-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, James E. Allen, has applied for federal habeas relief, filing a habeas

petition challenging an amendment to his November 2002 indictment by a Delaware Superior Court grand jury for attempted first degree robbery, attempted second degree burglary, possession of a firearm during the commission of a felony and related offenses. D.I. 1. By the terms of the Court's order, the answer is due to be filed on February 5, 2007. D.I. 5. 2. Counsel has been, and continues to be, diligently working on numerous cases before However, the workload for the Appeals Division attorneys is

this Court and the state courts.

currently very substantial. The undersigned, in the last three weeks, has filed two answering briefs in appeals in the state supreme court and has presented oral argument in a federal habeas case in the

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.

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Third Circuit. In addition, counsel was out of the office for several days due to illness. In light of the situation, additional time is needed to complete the answer and have it reviewed in the ordinary course of business. 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, 147374 & 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 that should be allowed s 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 9, 2007, in

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

DATE: February 1, 2007

/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

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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: February 1, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JAMES E. ALLEN, Petitioner, v. THOMAS CARROLL, Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. : : : : : : : : : : :

Civ. Act. No. 06-578-GMS

ORDER This _____day of _________________________, 2007, 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 9, 2007.

____________________________ United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on February 1, 2007, I electronically filed a motion for extension of time with the Clerk of Court using CM/ECF. I also hereby certify that on February 1, 2007, I have mailed by United States Postal Service, the same document to the following non-registered participant: James E. Allen SBI No. 490461 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]