United States District Court, S.D. New York
November 7, 2005.
DEYSAAN BEY, Petitioner,
L. PAYANT, Superintendent of Mohawk Correctional Facility, Respondent.
The opinion of the court was delivered by: RONALD ELLIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Petitioner Deysaan Bey ("Bey") filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 on January 14, 2005.
He amended the petition on February 28, 2005. The case was
referred to the undersigned on May 2, 2005, who ordered the
government to respond within thirty days on September 12, 2005.
On October 6, 2005, the government requested until December 21,
2005, to answer because of a heavy caseload and because the
attorney had not yet received the state court record at that
date. The request was granted by the undersigned on October 12,
2005. In response, on October 15, 2005, Bey filed an objection
and Notice of Motion to bar respondent's answer pursuant to Rule
8(d) of Federal Rules of Civil Procedure via Rule 81(A)(2)
("Objection"), together with an affidavit in support
("Affidavit"). For the reasons that follow, Bey's motion to bar
respondent's answer is DENIED.
Bey objects to the extension of the respondent's time to
answer, arguing that the extension shows unfair favoritism to the
government in violation of his due process rights. Objection at 2. In support of his motion, Bey refers to a number
of rules that do not apply in this particular situation.
Respondent asked for an extension twenty-four days after the
September 12, 2005 order setting out the initial deadline for
respondent's answer. Bey argues this request was untimely, citing
Federal Rule of Civil Procedure ("FRCP") 72(a) and
28 U.S.C. § 636(b)(1)(c), which allow ten days for parties to respond to a
Magistrate Judge's report and recommendation regarding
non-dispositive matters. These rules do not apply to a scheduling
order. FRCP 72(a) only applies when a Magistrate Judge issues a
report and recommendation which requires adoption by a District
Judge. The extension at issue here was within the discretion of
the undersigned and did not require adoption. As respondent asked
for the extension within the period of time previously allowed,
FRCP 6(b) gives the court the discretion to enlarge the time
Bey also cites 28 U.S.C. § 2243 which dictates that "[t]he
writ, or order to show cause shall be directed to the person
having custody of the person detained. It shall be returned
within three days unless for good cause additional time, not
exceeding twenty days, is allowed." 28 U.S.C. § 2243. This rule
also does not apply to a briefing schedule. Again, such
enlargements of time are within the Court's discretion under FRCP
This Court recognizes Bey's sense of urgency, as the same
frustration is felt by many petitioners in his situation.
However, extensions of time to submit papers for both petitioners
and respondents in habeas cases are granted when cause is shown.
Among the factors here, for example, is that respondent had not yet received the state court
record,*fn1 an important element in the Court's
consideration of the petition. Bey's motion is DENIED.
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