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

Case 1:08-cv-00203-SLR

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Filed 08/13/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL J. ANKER, Petitioner, v. ELIZABETH NEAL, Acting Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 08-203-SLR

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 answering brief. In support thereof, respondents state the following: 1. The petitioner, Daniel J. Anker, has applied for federal habeas relief, challenging his

2005 convictions by a Delaware Superior Court jury for nine counts of felony theft and one count of second degree conspiracy. D.I. 1. The answering brief is due to be filed on August 18, 2008. 2. Counsel for respondents has done substantial work on the answer. Counsel, however,

is currently under the weather. In addition, since agreeing to the briefing schedule, counsel was scheduled to present oral argument in the Delaware Supreme Court next week. As a result, additional time is needed to file the answer. 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

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factors such as the respondents' 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 to file an answer. Respondents submit that an extension of time to and including August 27, 2008 in

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

DATE: August 13, 2008

/s/ Elizabeth R. McFarlan Deputy Attorney General Del. Bar. ID No. 3759 Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500

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RULE 7.1.1 CERTIFICATION I hereby certify that counsel for the petitioner, Joseph M. Bernstein, Esquire, has been contacted and he has no objection to the subject matter of this motion.

/s/ Elizabeth R. McFarlan Deputy Attorney General Counsel for Respondents

Date: August 13, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DANIEL J. ANKER, Petitioner, v. ELIZABETH NEAL, Acting Warden, and JOSEPH R. BIDEN, III, Attorney General of the State of Delaware, Respondents. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 08-203-SLR

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' answering brief shall be filed on or before August 27, 2008.

____________________________ United States District Judge

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CERTIFICATE OF SERVICE I hereby certify that on August 13, 2008, I electronically filed a motion for extension of time with the Clerk of Court using CM/ECF which will send notification of such filing to: Joseph M. Bernstein, Esq. 800 North King Street, Suite 303 Wilmington, DE 19801

/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]