United States District Court, E.D. Wisconsin
DENYING AS MOOT THE PETITIONER'S MOTION FOR AN
PETITIONER'S MOTION TO APPOINT COUNSEL (DKT. NO. 11),
GRANTING THE RESPONDENT'S MOTION FOR EXTENSION OF TIME
(DKT. NO. 17), GRANTING RESPONDENT'S MOTION TO DISMISS
THE PETITION AS UNTIMELY (DKT. NO. 18), DENYING THE
PETITIONER'S MOTION FOR DEFAULT JUDGMENT (DKT. NO. 20),
DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, DISMISSING
PETITION FOR WRIT OF HABEAS CORPUS UNDER 28 U.S.C.
§2254 (DKT. NO. 1) AND DISMISSING CASE
PAMELA PEPPER UNITED STATES DISTRICT JUDGE
11, 2017, Jeffrey Harris filed a petition for writ of
habeas corpus under 28 U.S.C. §2254,
challenging his 1978 conviction for first-degree homicide as
party to a crime. Dkt. No. 1. He alleged four grounds for
relief: (1) “Newly Discovered Evidence Recantation
Evidence of the State's Witness, Herbert
Shropshire;” (2) “Newly Discovered Evidence of
Charles Hart;” (3) “Newly Discovered Evidence Of
Mark Springfield;” and (4) ineffective assistance of
counsel. Dkt. No. 1 at 6-10. The petitioner asked the court
for an evidentiary hearing, dkt. no. 4, and asked the court
to appoint counsel for him, dkt. no. 11. After Magistrate
Judge Duffin screened the petition, the respondent filed a
motion for extension of time to file a motion to dismiss,
dkt. no. 17, along with a motion to dismiss the petition as
untimely, dkt. no. 18. The petitioner subsequently filed a
motion for default judgment. Dkt. No. 20. The same day, the
petitioner responded to the motion to dismiss, arguing that
the court should allow his claims to proceed under the
gateway of actual innocence. Dkt. No. 22. The court will
grant the respondent's motion for extension of time,
grant the respondent's motion to dismiss the petition as
untimely, deny the petitioner's motions and dismiss the
petitioner challenges a conviction from May 1978-almost forty
years ago. In connection with their various pleadings and
motions, the parties have presented documents from federal
and state court proceedings spanning the four decades from
the petitioner's original conviction date to the present.
The court begins by examining this history.
State Court Proceedings
Petitioner's May 1-4, 1978 Jury Trial
4, 1978, after a four-day trial, a jury found the petitioner
guilty of attempted armed robbery as party to a crime and
murder in the first degree as party to a crime for his role
in the robbery of a liquor store and the shooting death of
its owner, Gervis Myles. Dkt. No. 19-13 at 268.
evidence at trial showed that on May 27, 1976, police officer
Kenneth Darton responded to a call at the Great Western
Liquor Store located at 1101 West Atkinson Avenue in
Milwaukee, Wisconsin. Id. at 46. Officer Darton
found Gervis Myles lying on the floor in a pool of blood,
with a bullet wound “in the center of his forehead just
above the eyes.” Id. at 48, 50. Officer Darton
also observed an empty, open, zipper-type bank bag beneath
the counter and coins scattered on the floor. Id. at
Chesley P. Erwin testified at trial that he found a bullet
wound in the victim's forehead, as well as
“tattooing” or “stippling” around the
victim's forehead, indicating “a relatively close
distance of the shot.” Id. at 67. The
victim's wife, Gloria Myles, identified the body and, on
cross-examination, testified that her husband kept a handgun
at his store. Id. at 76-77.
individual named Herbert Shropshire set the scene for the
petitioner's involvement in the shooting. Shropshire
testified that he had gone to Elnora Howze's home in the
afternoon on May 27, 1976 and had found five individuals
there: Mark Springfield, Trudy Joiner, Charles Hart, Elnore
Howze and the petitioner. Id. at 81. He testified
that the petitioner lived at Howze's home at that time.
Id. Shropshire said that he knew the petitioner
owned a handgun, and that he had seen the petitioner's
handgun in Howze's home. Id. at 83. After
arriving at Howze's home, Shropshire testified that he
went to a bedroom with Hart and the petitioner, where they
had a conversation about “how it is that they [could]
make some quick money.” Id. at 98. After the
conversation, the petitioner and Hart left the home;
Shropshire followed shortly after, and when he caught up with
the pair, they informed Shropshire that they were going to
rob the liquor store. Id. at 82, 84. Shropshire
testified that he was to act as the lookout. Id. at
testified that Hart and the petitioner entered the store and
“cas[ed] the place.” Id. They left the
store, told Shropshire that it looked easy, and instructed
Shropshire to stay outside while they went back in.
Id. at 85-86. Shropshire said that he then heard a
gunshot, and saw Hart and the petitioner running out of the
store. Id. at 86-87. He testified that he saw a gun
in the petitioner's hand as the petitioner ran from the
store. Id. at 87. After seeing Hart and the
petitioner run from the store, Shropshire walked in a
different direction, played some basketball in the park and
eventually went back to Howze's house. Id. Back
at Howze's, Shropshire testified that he saw the
petitioner, Hart, Elnora Howze, Trudy Joiner, Mark
Springfield and Donald Carter. Id. At Howze's
home, Hart and the petitioner told Shropshire that it
“went down wrong” and that they had had to kill
the man. Id. at 89. On cross-examination, Shropshire
admitted to previously providing a statement saying that the
petitioner and Hart had told him “there was a
struggle” and that “[Hart and the petitioner] had
to shoot him[.]” Id. at 144. Shropshire also
testified that, back at Howze's, the petitioner discussed
dropping a gun on the way back to the home and that Donald
Carter had gone to retrieve it. Id. at 90.
Howze testified that on May 27, 1976, Charles Hart, Herbert
Shropshire, Mark Springfield and Donald Carter came to her
home. Id. at 167. She testified that the petitioner
had lived at her residence for around a year, and that on the
day in question the petitioner had a gun in the bedroom of
her house. Id. at 166-67She said that Shropshire,
Hart and the petitioner held a conversation in her home, then
left. Id. at 168. Howze testified that the
petitioner returned to the house with Hart and that
“they appeared to have been running, tired.”
Id. at 169.
said she did not immediately find out where the petitioner
had been, but that the petitioner asked her to go get the gun
that he had dropped. Id. at 170-71. She testified
that the dropped gun was the same gun that the petitioner
kept in her bedroom. Id. at 171. Howze went with
Charles Hart to try to retrieve it, but could not find the
gun. Id. She went to look for the gun a second time
with Donald Carter, but again could not find the gun.
Id. at 172. She said that, eventually, Donald Carter
came back to her home with the gun. Id. at 173.
Howze then described how Hart and the petitioner had gone to
her bathroom when they arrived back at her home, and that she
overheard a conversation where the petitioner mentioned that
Hart saved his life. Id. 173-74.
testified that on the day after the homicide, the petitioner
gave her a demonstration of the events in the liquor store.
Id.at 176. Howze said that the petitioner told
her that when the petitioner had approached the store
counter, Myles had pulled a gun and pointed it at the
petitioner's back. Id. at 194. Howze testified
that the petitioner reported “scuffling on the floor of
the liquor store[, ]” and that “he let go”
when he heard a gunshot. Id.
last witness for the state, Donald Carter, said that while at
the Howze household on the afternoon of May 27, 1976, the
petitioner had asked him to go get a gun that the petitioner
had dropped in the bushes. Id. at 203. Carter said
that he found the gun, loaded, between some bushes on his
second attempt to find it. Id. at 204, 207. He
testified that he recognized the gun that he found in the
bushes as being the same one he saw at Elnora Howze's
home several days before May 27, 1976. Id. at 206.
he filed a notice of alibi, id. at 22, the defendant
did not testify and presented no evidence, id. at
225. After about three hours of deliberation, the jury found
the petitioner guilty of attempted armed robbery as party to
a crime and murder in the first degree as party to a crime.
Id. at 267-68. The state court judge sentenced the
petitioner to a term of life imprisonment for the
first-degree murder conviction, and a term of five years for
the attempted robbery, to run consecutively to the life
imprisonment term. Dkt. No. 19-1.
Petitioner's October 26, 1978 Direct Appeal
petitioner's habeas petition states that he
filed a direct appeal on October 26, 1978. Dkt. No. 1 at 3.
No documentation supports an October 26, 1978 filing date,
but both parties provided the court with a Wisconsin Court of
Appeals' decision dated March 29, 1979. Dkt. Nos. 5 at
81; 19-4. From this decision, the court gleans the following:
on direct appeal, the petitioner argued that there was
insufficient evidence to sustain the verdict and that the
trial court erred in refusing to instruct the jury on the
lesser included offense of second-degree murder. Id.
at 82. After reviewing the evidence, the Wisconsin Court of
Appeals affirmed the conviction, id. at 89, and on
May 10, 1979, the Wisconsin Supreme Court denied the
petitioner's direct appeal. Id. at 109.
Petitioner's June 8, 1987 §974.06 Post-Conviction
years later, on June 8, 1987, the petitioner filed a
post-conviction motion in the trial court under Wis.Stat.
§974.06. Id. at 113. Neither party provided the
court with the trial court's decision, but both provided
the Wisconsin Court of Appeals' June 28, 1988 opinion on
appeal. Dkt. Nos. 5 at 113; 19-5. The court of appeals'
decision indicates that the petitioner raised seven grounds
for relief: (1) that there was insufficient evidence to
convict him of first-degree murder; (2) that his conviction
for first-degree murder rather than third-degree felony
murder violated his right to due process; (3) that the trial
court violated due process in instructing the jury; (4) that
the State denied the petitioner a fair trial when the
prosecution did not fully disclose the plea agreement it
offered to one of the witnesses against him; (5) that
Wis.Stat. §939.05 was unconstitutional on its face and
as applied; (6) that prejudicial remarks in the
prosecutor's opening and closing statements denied him a
fair trial; and (7) that his trial and appellate counsel
provided ineffective assistance. Dkt. No. 19-5 at 2.
petitioner's ineffective assistance of counsel claim, the
court of appeals noted: (1) that the petitioner argued that
his trial counsel should have called Mark Springfield to
testify on the petitioner's behalf; and (2) that the
petitioner had submitted an affidavit from Springfield dated
September 19, 1986, attesting that Springfield had fabricated
an earlier statement to police that had inculpated Harris.
Id. at 5-6. The court of appeals observed that, at
the time of trial, the petitioner's attorney would only
have had Springfield's original statement to police-the
statement inculpating the petitioner. Id. The court
reasoned that the petitioner's attorney would not have
acted in the petitioner's interest by calling Springfield
to testify about his statement inculpating the petitioner.
Id. The court of appeals discussed and denied the
petitioner's other grounds for relief, affirming the
circuit court. Id. at 6.
Petitioner's October 11, 1994 Motion for Modification
respondent submitted a decision from the Wisconsin Court of
Appeals dated October 11, 1994. Dkt. No. 19-6. The decision
states that in December of 1993, the petitioner filed a
motion for modification of his sentence in the circuit court,
arguing that “new factors” warranted modifying
his sentence. Id. at 3.
the petitioner presented his “his recent recollection
that one of the investigating police officers told [the
petitioner] he knew [the petitioner] did not pull the
trigger. . . .” Id. at 4. In response, the
court of appeals explained that the petitioner had been
convicted of “first degree murder, party to the
crime, under §939.05 Stats.” Id.
(emphasis in original). Under the party-to-a-crime theory,
the court explained, “[w]hether [the petitioner] pulled
the trigger or not, he is legally responsible for the murder
as a party to the crime[.]” Id.
petitioner also claimed that his co-defendants' sentences
constituted a factor that should have been considered at his
sentencing. Id. at 5. The court of appeals responded
that it would not consider Charles Hart's sentence as a
factor because the petitioner had not supplied a record of
the length or timing of Hart's sentence. Id. As
to Herbert Shropshire, the court of appeals said that because
Shropshire had been convicted only of attempted armed robbery
(as a result of his plea agreement) instead of first-degree
murder, it would not consider Shropshire's sentence as a
factor. Id. at 5-6. The court of appeals denied the
motion, id. at 7, and the Wisconsin Supreme Court
denied the petition for review on February 21, 1995, dkt. no.
5 at 119.
Petitioner's March 7, 2000 Wis.Stat. §782.01 habeas
March 7, 2000, the petitioner filed a petition for habeas
corpus in the circuit court under Wis.Stat.
§782.01(1). See Dkt. Nos. 5 at 120; 19-7. The
petitioner submitted a letter decision from the circuit court
dated March 14, 2000, and the respondent submitted the
Wisconsin Court of Appeals' decision dated June 7, 2001.
Id. Both the circuit court's letter
decision and the court of appeals' decision held that the
petitioner could not pursue §782.01 relief because he
was in custody under a valid judgment of conviction entered
by the circuit court in Milwaukee court in 1978. Id.
Petitioner's July 27, 2000 §974.06 post-conviction
little over four months later, on July 27, 2000, the
petitioner filed a motion in Milwaukee County Circuit Court
under Wis.Stat. §974.06. Dkt. No. 19-8 at 3. The
respondent provided both the circuit court's August 10,
2000 decision, id., and the Wisconsin Court of
Appeals' December 26, 2001 decision on the motion,
id. at 1. The circuit court's decision remarked
that the petitioner brought a “grab bag” of
motions, id. at 3, and after recounting the history
of the case, analyzed the petitioner's arguments for
ineffective assistance of trial and appellate counsel under
§974.06, id. at 3-6. The circuit court observed
that although the petitioner's §974.06 motion argued
that his trial counsel failed to properly investigate his
case, the petitioner could have raised that argument in his
original, 1987 motion or on his appeal. Id. at 5-6
(citing State v. Escalona-Naranjo, 185 Wis.2d 169,
179 (1994)). As for the petitioner's argument that his
post-conviction counsel, Mark Lukoff, failed to raise various
ineffective assistance of counsel issues, the circuit court
found that the petitioner had raised these issues himself and
that Escalona barred him from proceeding.
Id. at 6.
Wisconsin Court of Appeals summarily affirmed the
circuit's court denial of the petitioner's
post-conviction motion. Id. at 2. The court
concluded that “[the petitioner] is foreclosed from
relitigating issues, and that his multiple ineffective
assistance claims do not constitute a sufficient reason to
belatedly raise issues he could have raised in his previous
pro se postconviction motion.” Id.
Petitioner's January 6, 2015 Knight Petition
years later, in January of 2015, the petitioner filed in the
Wisconsin Court of Appeals a pro se petition for a
writ of habeas corpus under State v.
Knight, 168 Wis.2d 509, 522 (1992). Dkt. Nos. 5 at 90,
92; 19-9; see also Dkt. No. 19-11 at 2 (public
records indicating the petitioner filed his petition on
January 6, 2015). In an April 13, 2015 decision, the court of
appeals found that the petitioner's claims of (a)
ineffective assistance of trial counsel; (b) sentencing based
on inaccurate information; and (c) newly discovered evidence
warranting a new trial all should be presented to the trial
court in a Wis.Stat. §974.06 motion. Dkt. No. 19-9 at
3-4. As for the petitioner's argument regarding
ineffective assistance of appellate counsel, the court of
appeals remarked that the petitioner's allegations
centered on his belief that his appellate counsel should have
investigated, conducted witness interviews and aided the
petitioner in his pursuit of a new trial on grounds of newly
discovered evidence. Id. at 4. Because the
Knight petition challenged the conduct of his
post-conviction counsel rather than the conduct of
direct appellate counsel, the court again opined
that a §974.06 motion was the appropriate mechanism for
the petitioner to raise his claims. Id. at 5. The
court dismissed the petition.
Petitioner's April 22, 2015 §974.06 Motion
April 22, 2015-nine days after the court of appeals'
decision-the petitioner filed in the circuit court a pro
se, post-conviction motion under Wis.Stat. §974.06,
seeking a new trial based on new evidence. Dkt. No. 5 at 97.
The petitioner provided both the circuit court's May 5,
2015 decision denying his motion, dkt. no. 5 at 97-100, and
the Wisconsin Court of Appeals' February 9, 2016
decision, id. at 102-107. The respondent provided
the court of appeals' decision. Dkt. No. 19-12.
trial court observed that the petitioner “ha[d]
appended statements from co-defendants Shropshire and Hart,
plus affidavits from Pullum, and Springfield, which he claims
demonstrate unequivocally that he had no knowledge of
Shropshire and Hart's intent to rob the liquor
store.” Dkt. No. 5 at 97. It then found that
“[t]he uncorroborated statements from the co-defendants
are insufficient to grant the relief requested.”
Id. The trial judge detailed his concerns with the
hearsay nature of the “new evidence, ” and
described how “the testimony of other witnesses at
trial flies in the face of defendant's current
contentions and attached affidavits.” Id. at
99. Specifically, he observed that both Howze and Carter had
testified about the petitioner asking them to retrieve a gun
from some bushes. Id. at 99-100.
court of appeals first considered an affidavit dated October
3, 2014 from the petitioner's co-defendant, Charles Hart.
Dkt. No. 19-12 at 5. The Hart affidavit indicated that Hart
and Shropshire “decided to steal a money bag from
behind the store counter without Harris knowing about it[,
]” and that the petitioner “had no knowledge that
[Shropshire] and I had formed the intent to steal money from
the . . . [s]tore.” Id. The court found this
affidavit unpersuasive, because “[the petitioner]
previously filed two statements from Hart in support of [the
petitioner]'s prior postconviction motions: a signed
statement dated 1986 and a notarized affidavit dated December
4, 1991.” Id. at 6. The court explained that
“in Hart's 1991 affidavit, he not only asserted
that [the petitioner] was not involved, but also that [the
petitioner] was not even in the store at the time of the
crimes, having been left by Hart and Shropshire ‘at a
filling station on 17th Street.'”
Id. The court of appeals held that “[the
petitioner] cannot relitigate this issue by submitting
another affidavit from Hart again asserting that [the
petitioner] was not involved in the crimes.”
court then addressed an affidavit from Mark Springfield,
dated in 2008. Id. at 7. In it, Springfield stated
that he never heard the petitioner discussing a proposed
robbery, and that Springfield had learned later in life that
the petitioner did not have anything to do with the
storeowner's death. Id. The appellate court
noted that the petitioner had submitted a 1986 affidavit from
Springfield (containing similar attestations) in connection
with his 1987 §974.06 motion. Id. The court
found that the petitioner could not relitigate the issue by
submitting a new affidavit from Springfield. Id.
the court of appeals considered an April 20, 2009 affidavit
from “Raymond Pullum, ” who claimed to have
served prison time with Charles Hart. Id. The
appellate court recounted how Pullum's affidavit stated
that Hart had told Pullum that the petitioner did not have
anything to do with the homicide of the storeowner.
Id. The court concluded that “[a]t best,
[Pullum's affidavit] could be used to bolster Hart's
numerous statements that [the petitioner] was not involved,
but evidence that is ‘merely cumulative' does not
provide a basis for a new trial.” Id. at 7-8.
the court of appeals described “a two-page, unsigned
document entitled ‘INVESTIGATION MEMO' that
purports to be a memo to ‘File' from Byron
Lichstein of the University of Wisconsin Law School's
Remington Center.” Id. at 8. As described by
the court of appeals, the memo recounted a conversation
between Lichstein-an attorney with the Wisconsin Innocence
Project-and Herbert Shropshire, in which Shropshire told
Lichstein: (a) that Shropshire, Hart and Harris all entered
the store to buy liquor; (b) that they previously had not
discussed committing a robbery; (c) that upon entering the
store, Shropshire and Hart decided to commit a robbery; (d)
that Hart pulled out the gun, which caused the
storeowner/victim to grab the petitioner by the neck; and (e)
that Hart shot the storeowner in the head. Id.
assuming-without deciding-that the memo was authentic and
accurate, the court found that the document did not provide a
basis for a new trial. Id. It noted that
Shropshire's statement in the memo would be a recantation
of his trial testimony, and that the memo contradicted
“both the testimony offered at trial by other witnesses
and by the affidavits [the petitioner] has offered in support
of his postconviction motions.” Id. at 8-9.
The court cited the inconsistency between the Shropshire memo
(which stated that Hart had a gun) and Hart's 2014
affidavit (which stated that that none of the three men
entered the store with a gun and that the victim was killed
with his own gun). Id. The court dismissed the
petitioner's arguments about his trial and appellate
counsel because he had raised them-unsuccessfully-in prior
litigation. Id. at 10. On May 5, 2016, the Wisconsin
Supreme Court denied the petitioner's petition for
review. Dkt. No. 5 at 125.
Federal Court Proceedings
Petitioner's August 29, 2002 petition for habeas
the not the first time that the petitioner has pursued
habeas relief in federal court. The petitioner
provided the court with a March 26, 2003 decision from Judge
J.P. Stadtmueller in case number 02-C-851. Dkt. No. 5 at 110.
In his March 26, 2003 order, Judge Stadtmueller recounted
that on August 29, 2002, the petitioner had filed a petition
for a writ of habeas corpus under 28 U.S.C.
§2254, but that the petition did not comply with Rule
2(c) of the Rules Governing Section 2254 Cases because the
petitioner failed to provide copies of the state court
decisions concerning his direct appeal and post-conviction
proceedings. Id. Judge Stadtmueller's decision
explained that he had directed the petitioner to file an
amended petition, but that while the petitioner did so, he
still had not attached the documents, claiming “the
necessary state court decisions ‘came up missing'
from his property during the many riots and lockdowns which
took place over the years at his place of
incarceration.” Id. Judge Stadtmueller
determined that he could not conduct a preliminary, Rule 4
review of the petition without these decisions, and dismissed
the petition without prejudice. Id. at 111.
Petitioner's request in the Seventh Circuit Court of
filing this petition, the petitioner applied to the Seventh
Circuit Court of Appeals for an order allowing him to proceed
in the district court under 28 U.S.C. §2244(b)(3). Dkt.
No. 5 at 129. The petitioner submitted a May 1, 2017
decision, in which the Seventh Circuit determined that the
petitioner's application to bring a “second”
or successive petition under 28 U.S.C. §2244(b)(3) was
unnecessary. Id. Judge Posner explained that
“[a] prior decision dismissing a collateral attack
without prejudice does not subject a later collateral attack
to the pre-approval requirement of § 2244(b).”
Id. at 129-30 (citing Pavlovsky v.
VanNatta, 431 F.3d 1063 (7th Cir. 2005)). Thus, the
Seventh Circuit held, “[the petitioner] may file his
petition directly in the district court.” Id.
Petitioner's Current Petition
11, 2017-ten days after the Seventh Circuit's
decision-the petitioner filed the current petition for writ
of habeas corpus under 28 U.S.C. §2254, along
with a request for an evidentiary hearing. Dkt. Nos. 1, 4.
The next day, the petitioner filed a brief in support his
petition, together with 130 pages of attachments. Dkt. No. 5.
25, 2017, Judge Duffin screened the petition, and ordered the
respondent to answer or file a motion to dismiss within sixty
days of the day of the screening order. Dkt. No. 10. Six days
after Judge Duffin's order, the petitioner filed a
motion, asking the court to appoint counsel to aid him in
pursuing habeas relief. Dkt. No. 11. When the
respondent refused consent to proceed before Judge Duffin,
dkt. no. 16, the clerk's office transferred the case to
21, 2017-several days before the respondent's deadline to
answer the habeas petition-the respondent filed a
motion for an extension of time to answer or otherwise
respond. Dkt. No. 17. The motion asked for a four-day
extension-from July 24, 2017 until July 28, 2017.
Id. This court did not rule on the motion for an
extension of time, and the respondent filed a motion to
dismiss together with supporting documentation on July 28,
2017. Dkt. Nos. 18, 19. Within a week, the court received
from the petitioner a “motion for default judgment,
” asking the court to grant default judgment in his
favor due to the respondent' failure to respond within
sixty days. Dkt. No. 20. That same day, the petitioner filed
his brief in opposition to the respondent's motion to
dismiss. Dkt. No. 22. Three weeks later, the respondent wrote
a letter to the clerk of court, stating that she would not be
filing a reply brief to support her motion to dismiss. Dkt.
Respondent's Motion for Extension of Time (Dkt. No.
getting to the substance of the petition, the court must
address its failure to timely rule on the respondent's
motion for an extension of time, and the consequences of that
Duffin ordered the respondent to either answer the petition
or file a motion to dismiss it within sixty days of the date
of his Rule 4 screening order. Dkt. No. 10. He issued that
order on May 25, 2017, so the sixty-day deadline was Monday,
July 24, 2017. The respondent filed her motion to extend that
deadline on July 21, 2017-several days before the deadline
expired. The motion asked for a brief and reasonable
extension-only four days.
court should have promptly ruled on the respondent's
motion. The court did not do so, and it has no excuse other
than to say that the motion fell through the cracks of the
court's case tracking system. Had it seen the motion,
however, it would have granted it. Under Federal Rule of
Civil Procedure 6(b)(1)(A)-applicable to habeas
proceedings under Rule 12 of the Rules Governing Section 2254
Cases-the court may, for good cause, extend the time for a
party to act. The respondent's motion listed a number of
cases that had needed counsel's attention during the
sixty-day period, and asked for a short, reasonable ...