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

Case 1:04-cv-01537-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ANIBAL MELENDEZ, Petitioner, v. THOMAS CARROLL, Warden, Respondent. : : : : : : : : : :

Civ. Act. No. 04-1537-SLR

MOTION FOR EXTENSION OF TIME Pursuant to Rule 6 of the Federal Rules of Civil Procedure, the respondent moves for an extension of time in which to file an answer to the petition. In support thereof, the respondent states the following: 1. The petitioner, Anibal Melendez, has applied for federal habeas relief challenging an April 2002 conviction in the Superior Court by guilty plea, shortly before the start of his capital murder trial, to second degree murder and related offenses. (D.I. 2). 2. The Court in this case granted the respondent's request for an extension of

time to file the answer, and thus the answer was due to be filed on or before May 6, 2005. Counsel completed work on the answer in a timely fashion and prepared the document for filing in accordance with the recently enacted electronic filing procedures. Notably, counsel on May 6, 2005 filed the certified copies of state court records as directed by the Court's order. Inadvertently, however, the answer does not appear to have been filed with the Court. Counsel notes that the document was reduced to the "pdf format" required for filing, and counsel assumed that the document had been submitted to the Court. When electronic notice

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regarding the answer was not received, however, counsel's review of the docket revealed the answer had not been filed. Upon discovery of the oversight, counsel prepared the answer again for filing with the Court today. 3. Counsel was out of the office during the week of May 9-13, 2005, and thus

only became aware of the matter upon return. Undersigned counsel can only posit that the misstep was part of the learning curve associated with the new electronic filing procedures and will continue to make every effort to meet deadlines established by the Court. The undersigned certainly regrets any inconvenience caused to the Court or the petitioner by the timing of the requested extension. 4. This is the respondent's second request for an extension of time in this case.

The requested extension will not result in any prejudice to the petitioner. 5. In light of the above, the respondent submits that an extension of time to and Respondent submits herewith a proposed

including today, May 18, 2005 is reasonable. order.

/s/ Thomas E. Brown Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar ID# 3278 [email protected]

Date: May 18, 2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ANIBAL MELENDEZ, Petitioner, v. THOMAS CARROLL, Warden, Respondent. : : : : : : : : : : ORDER This ______ day of _______________, 2005, WHEREAS, respondent having requested an extension of time in which to file an answer to the petition for a writ of habeas corpus, and WHEREAS, it appearing to the Court that the request is timely and good cause has been shown for the extension, IT IS HEREBY ORDERED that respondent's answer shall be filed on or before May 18, 2005.

Civ. Act. No. 04-1537-SLR

_________________________________ United States District Judge

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CERTIFICATE 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/ Thomas E. Brown Deputy Attorney General Del. Dept. of Justice Counsel for Respondent Date: May 18, 2005

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CERTIFICATE OF SERVICE The undersigned, being a member of the Bar of this Court, hereby certifies that on May 18, 2005 he caused to be electronically filed a Motion for Extension of Time with the Clerk of the Court using CM/ECF and also caused to be mailed by first class U.S. Mail two copies of the document to the following non-registered participant, the petitioner: Anibal Melendez (No. 337929) Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977.

/s/ Thomas E. Brown Deputy Attorney General Del. Dept. of Justice Counsel for Respondents Date: May 18, 2005