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Case 6:21-cr-10073-EFM Document 334 Filed 04/27/26 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, )
Plaintiff, )
)
vs. ) No. 6:21-cr-10073-EFM-1
) 6:26-cv-01044-EFM
MICHAEL R. CAPPS, )
Defendant. )
DEFENDANT’S OPPOSITION TO GOVERNMENT’S
SECOND MOTION FOR EXTENSION OF TIME
Defendant Michael R. Capps respectfully submits this Opposition to the Government’s Second
Motion for Extension of Time to File its Response to Defendant’s Motion Under 28 U.S.C. § 2255
(Doc. 333).
1. DEFENDANT EXPRESSLY RESERVED THE RIGHT TO OPPOSE THIS MOTION.
In his Response to the Government’s first extension motion, Defendant consented to a 45-day
extension while expressly reserving the right to oppose any further extension requests, and
requested that the Court enter an order setting May 1, 2026 as the deadline for the government’s
response. Doc. 325 at ¶ 4. The government was on notice at the time it accepted that extension that
Defendant would not consent to a second one. Defendant advised the government of his opposition
by email on April 27, 2026, prior to the filing of Doc. 333, and the government has accurately
noted that opposition in its motion. Doc. 333 at ¶ 4. That reservation was not a formality - it is the
foundation of this opposition.
2. THE MOTION REPEATS A DOCKET ERROR THE GOVERNMENT WAS
CORRECTED ON OVER FOUR WEEKS AGO.
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Paragraph 1 of the government’s motion again identifies Defendant’s § 2255 motion as “Doc. 52.”
Doc. 333 at 1. This Court’s docket reflects that Defendant’s § 2255 motion is Doc. 321. Defendant
identified and corrected this same error in his Response to the government’s first extension motion.
Doc. 325 at ¶ 2. The recurrence of this error in a second filing, after the government was placed
on notice of the correct docket number, is not a typographical oversight - it is a pattern. Defendant
notes it for the record so that the Court may ensure its own records are accurate.
3. THE GOVERNMENT’S STATED JUSTIFICATIONS DO NOT WITHSTAND
SCRUTINY.
The government’s second motion rests on two grounds: the complexity and volume of issues raised
in the § 2255 motion, and the undersigned’s concurrent obligations in three Tenth Circuit appeals
- United States v. Mentzer, No. 25-3132; United States v. Bush, No. 25-3170; and United States v.
Grigsby, No. 26-3036. Doc. 333 at ¶ 3. Examination of the publicly available dockets in each of
those cases reveals that this justification does not hold up.
Mentzer (No. 25-3132) is finished. The government filed its appellee’s brief in Mentzer on
April 23, 2026 - four days before filing the instant motion. Doc. 45, No. 25-3132 (10th Cir.
Apr. 23, 2026). Whatever demands Mentzer placed on undersigned counsel’s time, they
concluded before this motion was filed. Notably, the government required three separate
extensions from the Tenth Circuit to complete that brief, with the court twice warning that no
further extensions would be granted. The pattern of serial extension requests is not unique to
this case.
Bush (No. 25-3170) shares the exact same May 1, 2026 deadline as the government’s response
in this case. The government is simultaneously citing one May 1 obligation as justification for
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extending the other. The government cannot use each deadline as cover for failing to meet the
other. The Bush docket further reflects that the government has already obtained two
extensions in that matter, with the Tenth Circuit warning after the second that no further
extensions would be granted absent extraordinary circumstances. Doc. 21, No. 25-3170 (10th
Cir. Mar. 25, 2026). Bush is also a § 2255 appeal - the same category of proceeding as the
matter the government claims it needs additional time to address.
Grigsby (No. 26-3036) presents the weakest justification of the three. The appellant’s opening
brief in Grigsby was filed on April 20, 2026 - seven days before the instant motion. The
government’s response in Grigsby is not due until May 20, 2026. The government has not
sought any extension in Grigsby, nor would one presently be necessary. Citing a case with 23
days remaining on its response deadline and no pending deadline pressure as “press of
business” is not a workload argument - it is a calendar entry. Every active litigator carries cases
with future deadlines. That is not burden; that is a docket.
Taken together, the three cases the government cited by name and docket number do not establish
the kind of concurrent extraordinary burden that justifies a second extension over a defendant’s
express objection. If anything, the specificity of the government’s citation invites exactly the
scrutiny the dockets reveal.
4. BY ANY MEASURE, THE GOVERNMENT HAS HAD SUFFICIENT TIME.
Defendant filed his § 2255 motion on February 24, 2026. By May 1, 2026 - the deadline the
government now seeks to extend - the government will have had the motion for 66 days. The
proposed new deadline of May 31, 2026 would extend that period to 96 days. The § 2255 motion
identifies six claims, each with particularized legal standards and factual predicates, and was
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prepared without the benefit of counsel or institutional resources. The complexity of the record
was not a surprise created by the § 2255 filing - it is the government’s own case, developed over
the course of a prosecution in which the government participated at every stage.
5. THE GOVERNMENT’S INACTION ON ITS OWN INVESTIGATIVE PROCESS
UNDERMINES THE CLAIM OF DILIGENCE.
On March 25, 2026 - more than 30 days before the current response deadline - the government
contacted Defendant’s former trial counsel by email requesting a detailed affidavit addressing each
IAC claim raised in the § 2255 motion. As of the date of this filing, the public docket reflects no
subpoena, no motion to compel, and no court order sought in connection with that affidavit request.
An attorney of former counsel’s standing and experience would not voluntarily disclose
information touching on attorney-client communications based on an informal email request,
absent a formal court order or legal process - a reality the government, as a sophisticated litigant
represented by its Appellate Chief, unquestionably understands. The government’s decision to
initiate that process informally and then devote the subsequent 30-plus days to the Tenth Circuit
appeals it now cites - rather than pursuing the formal legal mechanisms necessary to actually obtain
the affidavit - does not constitute diligence. It is delay of the government’s own making, the
consequences of which should not be borne by Defendant.
6. THE PROPOSED DEADLINE RAISES A CUSTODY JURISDICTION MATTER
THE COURT SHOULD HAVE BEFORE IT.
The government's motion requests a deadline of May 31, 2026. Defendant's current BOP projected
release date under the First Step Act is May 2, 2026 - 29 days before the government's proposed
deadline. First Step Act release dates recalculate monthly and consistently advance forward, a
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mechanic the government, through the Bureau of Prisons - a component of the Department of
Justice - has continuous access to and awareness of.
Defendant raises this not to attribute bad faith to the government, but because the record should be
clear on two points. First, the Court’s jurisdiction over this § 2255 motion is secure regardless of
Defendant’s custody status at the time of the government’s response. Jurisdiction under § 2255
attaches at the time of filing, and Defendant was indisputably in federal custody on February 24,
2026. Maleng v. Cook, 490 U.S. 488, 490–91 (1989). Second, supervised release constitutes
“custody” for purposes of federal habeas jurisdiction. Jones v. Cunningham, 371 U.S. 236, 242–
43 (1963); Maleng, 490 U.S. at 491. Any argument that Defendant’s transition from BOP custody
to supervised release affects standing or jurisdiction would be without merit and contrary to settled
law. The Court and the parties should proceed on that understanding.
7. THE DISPARITY BETWEEN THE PARTIES COUNSELS AGAINST FURTHER
DELAY.
Defendant is proceeding pro se. He researched, drafted, and filed a detailed six-claim § 2255
motion within the AEDPA one-year deadline without counsel, institutional support, or access to
the government’s own case file. The government is represented by the Appellate Chief of the
United States Attorney’s Office for the District of Kansas, with access to the full trial and appellate
record it developed, the resources of the Department of Justice, and the professional infrastructure
of a federal prosecutorial office. The government’s resource advantages are not a reason to extend
its deadline - they are a reason to hold it to the one already granted.
WHEREFORE, Defendant respectfully requests that the Court deny the Government’s Second
Motion for Extension of Time and order the government to file its response to Defendant’s § 2255
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motion no later than May 1, 2026. In the alternative, should the Court be inclined to grant any
extension, Defendant respectfully requests that any such extension be limited to the shortest period
the Court deems necessary, that no further extensions be permitted absent extraordinary
circumstances demonstrated by specific and verified showing, and that the Court note for the
record that jurisdiction over this matter is unaffected by any change in Defendant’s custody status.
Respectfully submitted,
_____________________________________
Michael R. Capps, Pro Se
Reg. No. 66142-509
Dallas RRM
Dated: April 27, 2026
CERTIFICATE OF SERVICE
I hereby certify that on April 27, 2026, a true and correct copy of the foregoing Opposition was
transmitted electronically to the Clerk of the Court for the District of Kansas, who will
electronically file the same via the CM/ECF system, which will automatically generate notice of
filing and effect service upon all registered participants, including:
James A. Brown
Assistant United States Attorney
444 SE Quincy Ave., Ste. 290
Topeka, KS 66683
_____________________________________
Michael R. Capps
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