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

Case 1:08-cv-00297-GMS

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Filed 07/31/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ELTON LEROY PUMPHREY, Petitioner, v. PERRY PHELPS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) )

Civ.Act.No. 08-297-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, Elton Pumphrey, has applied for federal habeas relief,

alleging error by the state courts. D.I. 2. By the terms of the Court's order, the answer is due to be filed on July 7, 2008. D.I. 13. 2. Counsel has been in court for much of the past month and has been unable

to complete respondents' answer to Mr. Pumphrey' petition. Additionally, counsel has s been responsible for numerous handling matters in Justice of the Peace Court, Court of Common Pleas, Superior Court, and Supreme Court in the past several weeks. Furthermore, counsel will be out of the office for two weeks in August and, upon return, will be moving to another unit. Therefore, counsel anticipates that responsibility for responding to Mr. Pumphrey' petition for writ of habeas corpus will fall to another s Deputy.

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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' workload" in s 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 September

1, 2008, in which to file an answer is reasonable. Respondents submit herewith a proposed order.

/s/Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836 [email protected] DATE: July 31, 2008

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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/ Kevin M. Carroll Deputy Attorney General Counsel for Respondents

Date: July 31, 2008

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CERTIFICATE OF SERVICE I hereby certify that on July 31, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on July 31, 2008, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Elton Pumphrey No. 185250 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/Kevin M. Carroll Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4836 [email protected]

Date: July 31, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ELTON LEROY PUMPHREY, Petitioner, v. PERRY PHELPS, Warden and JOSEPH R. BIDEN, III, Attorney General for the State of Delaware Respondents. ) ) ) ) ) ) ) ) ) ) ) ORDER This _____day of _________________________, 2008, 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 September 1, 2008.

Civ.Act.No. 08-297-GMS

____________________________ United States District Judge