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

Case 1:08-cv-00178-GMS

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

Civ.Act.No. 08-178-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, Sylvester Miller, has applied for federal habeas relief,

alleging error by the state courts. D.I. 1. By the terms of the Court's order, the answer is due to be filed on September 5, 2008. 2. Counsel has begun responding to the numerous allegations of error raised

in Mr. Miller' comprehensive petition and accompanying memorandum of law. s Unfortunately, more time is needed to complete respondents'answer. Counsel has

recently assumed a new position within the Department of Justice; that transition has resulted in additional responsibilities and added considerably to counsel' workload. s Additionally, counsel was in a felony trial on September 4, 2008. Moreover, counsel will be out of the office for two of the next three weeks for training purposes. As a result,

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counsel requests that he be given an extension to include October 3, 2008, to file the respondents' answer to Mr. Miller' petition. s 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' second request for an extension of time in this case. Respondents submit that an extension of time to and including October 3,

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: September 5, 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: September 5, 2008

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CERTIFICATE OF SERVICE I hereby certify that on September 5, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on September 5, 2008, I have mailed by United States Postal Service, the same documents to the following non-registered participant: Sylvester Miller No. 532861 James T. Vaughn 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: September 5, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE SYLVESTER MILLER, 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 October 3, 2008.

Civ.Act.No. 08-178-GMS

____________________________ United States District Judge