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

Case 1:08-cv-00109-SLR

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

Civ.Act.No. 08-109-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 answer to the petition. In support thereof, respondents state the following: 1. The petitioner, Donald R. Cochran, has applied for federal habeas relief,

alleging a variety of errors in his state court criminal proceedings. D.I. 1. By the terms of the Court's order, the answer was due to be filed on May 9, 2008. 2. Counsel inadvertently neglected to place this matter on his scheduling

calendar. Additionally, due to an abundance of state court matters filed within the past two weeks, counsel has been unable to complete the State's response to Cochran's petition in a timely fashion. 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

Case 1:08-cv-00109-SLR

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discretion to take into account various factors such as the respondent's 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 in this case. Respondents submit that an extension of time to and including June 13,

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

/s/ James T. Wakley Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4612 DATE: May 13, 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/ James T. Wakley Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Counsel for Respondents

Date: May 13, 2008

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CERTIFICATE OF SERVICE I hereby certify that on May 13, 2008, I electronically filed the attached documents with the Clerk of Court using CM/ECF. I also hereby certify that on May 13, 2008, I mailed, by United States Postal Service, the same documents to the following non-registered participant:

Donald R. Cochran SBI # 00201992 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ James T. Wakley Deputy Attorney General Department of Justice 820 N. French Street Wilmington, DE 19801 (302) 577-8500 Del. Bar. ID No. 4612 [email protected] Date: May 13, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE DONALD R. COCHRAN 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 good cause has been shown for the requested extension, IT IS HEREBY ORDERED that respondents' answer shall be filed on or before June 13, 2008.

Civ.Act.No. 08-109-SLR

____________________________ United States District Judge