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

Case 1:04-cv-01561-KAJ

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Filed 05/05/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE BRIAN TURNER, Petitioner, v. THOMAS L. CARROLL, Warden, and M. JANE BRADY, Attorney General for the State of Delaware, Respondents. : : : : : : : : : : : :

Civ. Act. No. 04-1561-KAJ

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, Brian Turner, has applied for federal habeas relief, challenging his

October 2002 conviction after a bench trial in Delaware Superior Court for trafficking in cocaine. D.I. 1, 3; Turner v. State, 826 A.2d 289 (Del. 2003). By the terms of the Court's April 1, 2005 order, the answer is due to be filed on May 6, 2005. D.I. 9. 2. Counsel has been working diligently on this answer, in addition to working on other

cases before this Court and the state courts, including an answering brief due to be filed in the state supreme court on Monday. Due to counsel' current substantial workload, although counsel has s completed a substantial portion of the answer, she has been unable to complete the answer and have it reviewed in the ordinary course of business. In light of the situation, additional time is needed to complete the answer.

Case 1:04-cv-01561-KAJ

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Filed 05/05/2005

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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, 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 respondents' workload" in determining the period of time that should be allowed to answer the petition. 4. This is respondents'second request for an extension of time in this case. The

requested extension will not result in any prejudice to the petitioner. 5. Respondents submit that an extension of time to and including May 13, 2005 in which

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

DATE: May 5, 2005

/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

Case 1:04-cv-01561-KAJ

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CERTIFICATE OF SERVICE I hereby certify that on May 5, 2005, I electronically filed a motion for extension of time and attachments with the Clerk of Court using CM/ECF. I hereby certify that on May 5, 2005, I have mailed by United States Service, the same documents to the following non-registered participant: Brian Turner SBI No. 252136 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