Armenia Cudjo, Jr. v. Robert Ayers, Jr.

Filing 10

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Unopposed Motion to extend time to file Opening brief until 08/19/2009. Date of service: 05/28/2009. [6936742] (MRD)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
v.

Petitioner-Appellant,

R.K. WONG, Warden,
Respondent-Appellee.

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) CA No. 08-99028
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) D.C. No. CV-99-08089-JFW
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APPELLANT’S UNOPPOSED MOTION FOR EXTENSION OF TIME TO
FILE APPELLANT’S OPENING BRIEF AND EXCERPTS OF RECORD
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
CENTRAL DISTRICT OF CALIFORNIA
HONORABLE JOHN F. WALTER
United States District Judge

SEAN K. KENNEDY
Federal Public Defender
MARK R. DROZDOWSKI
KATHERINE FROYEN BLACK
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California
Telephone: [phone]
Facsimile: [phone]
Attorneys for Petitioner-Appellant
ARMENIA LEVI CUDJO, JR.

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
v.

)

Petitioner-Appellant,

R.K. WONG, Warden,
Respondent and Appellee.

) CA No. 08-99028
)
) D.C. No. CV-99-08089-JFW
)
)
)
)
)
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UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE
APPELLANT’S OPENING BRIEF AND EXCERPTS OF RECORD
Petitioner-Appellant, Armenia Levi Cudjo, Jr., hereby requests an extension
of 75 days, to and including August 19, 2009, to file and serve his opening brief
and excerpts of record. This request is made under Rule 31 of the Federal Rules
of Appellate Procedure and Circuit Rule 31-2.2(b) and is based on the attached
Declaration of Mark R. Drozdowski.

Dated: May 28, 2009

Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender

By

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI
Deputy Federal Public Defender
Attorneys for Petitioner-Appellant

DECLARATION OF MARK R. DROZDOWSKI
I, Mark R. Drozdowski, declare:
1.

I am an attorney licensed to practice law in the State of California and

I am admitted to practice in this Court. I am a deputy federal public defender with
the Office of the Federal Public Defender for the Central District of California
(“FPD”). I am also the supervising attorney of the FPD’s capital habeas unit
(“CHU”), and as such am responsible for overseeing the CHU’s 14 attorneys and
its caseload of about 62 federal capital habeas cases (including two 28 U.S.C.
§ 2255 actions), roughly 34 federal noncapital habeas cases and direct appeals,
and federal trial work. I am one of the attorneys assigned to represent Cudjo in
this appeal. I make this declaration in support of Cudjo’s request for a 75-day
extension of time, to and including August 19, 2009, to file and serve his
appellant’s opening brief and excerpts of record.
2.

Cudjo filed, and the Court granted, three previous unopposed motions

for 30-day extensions of time to file and serve the opening brief and excerpts,
bringing the total amount of extensions granted thus far to 90 days and making the
current due date for these documents June 5, 2009. I make this request for a
longer extension of 75 days because, realistically looking at my schedule over the
next two months, the staffing available for this case, and the work that remains to
be done, I believe that we need that amount of time to complete the brief and
related work. I am optimistic that if the Court grants this extension request, we
will not need to file another one. The reasons for the request are as follows:

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3.

I am primarily responsible for drafting the opening brief. The district

court sua sponte granted a certificate of appealability (“COA”) on one claim,
involving lethal injection, but we will seek to expand the COA in the opening
brief to include the claims on which we had an evidentiary hearing in district court
and probably on one or more record-based claims.
4.

One of the two other attorneys assigned to this appeal, Katherine

Froyen Black, went out on maternity leave on or about May 1, 2009. She will
remain on maternity leave until next fall. She has been unavailable to work on this
case since going out on leave. The other attorney assigned to the appeal, John
Littrell, has an active caseload in our trial unit. He has been assigned to draft one
of the claims in the appeal (the one he handled at the evidentiary hearing), but he
has not finished drafting that claim.
5.

I have been unable to complete my legal research and record review

for the opening brief, and a draft of the portions of the brief assigned to me,
because of my obligations in other cases and as CHU supervisor. Since the Court
granted the prior extension request on May 1, 2009, I have engaged in the
following work in other cases:
6.

I am the sole attorney representing Robert Fairbank in his capital

habeas appeal Fairbank v. Ayers, Ninth Circuit Case No. 08-99018. Fairbank’s
opening brief and excerpts of record are due June 8, 2009. I spent numerous hours
the past month working on Fairbank’s appeal. I expect to file one final extension
request in Fairbank but even if it is granted, I will have to file his brief in June.
7.

I am the sole attorney representing Mario Guerra in his noncapital

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habeas appeal Guerra v. Felker, Ninth Circuit Case No. 07-55891. I filed
Guerra’s opening brief and excerpts on January 20, 2009. Mr. Guerra asked for
leave to file his own supplemental brief, and the Court granted my request to
withdraw the opening brief and re-file another one hopefully more to Mr. Guerra’s
liking. That brief is due June 10, 2009, and I anticipate meeting that deadline. I
have spent some time the past week revising the brief.
8.

I am the sole attorney assigned to represent the appellant in the

noncapital habeas appeal Trotter v. Harrison, Ninth Circuit Case No. 07-55451.
This Court affirmed the judgment against Mr. Trotter in March. In the past week,
I drafted a petition for a writ of certiorari that is due by June 15, 2009.
9.

One of my duties as CHU supervisor is to review draft Ninth Circuit

briefs prepared by other lawyers in our office. I reviewed reply briefs that were
filed in two noncapital habeas appeals in May.
10.

In addition to the Fairbank opening brief, I anticipate having to work

on the following matters between now and the end of June:
11.

I am co-counsel for the capital habeas petitioner in Panah v. Wong,

C.D. Cal. Case No. 05-7606-RGK. Panah’s informal reply in support of his state
exhaustion petition is due June 8, 2009. It will take me several days to finish my
portions of the reply. One of the two other lawyers assigned to the case is on
paternity leave.
12.

I am the sole counsel currently representing Tracy Cain in his capital

habeas case Cain v. Wong, C.D. Cal. Case No. CV 96-2584-ABC. (Katherine
Froyen Black is my co-counsel but she is on maternity leave, as mentioned above.)

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Cain’s amended federal petition must be filed by June 15, 2009, and I will have to
spend time working on the petition before then.
13.

I am one of the attorneys representing the capital habeas petitioner in

Jennings v. Brown, E.D. Cal. Case No. 91-CV-00684-OWW. Petitioner’s
supplemental motion for an evidentiary hearing is due June 24, and I expect to
have to draft all or at least most of the motion.
14.

My supervisory duties have consumed at least roughly 20 hours per

week since May 1.
15.

I have worked everyday, including weekends and Memorial Day,

since the prior extension request was granted on May 1. To give myself more time
to try to complete my work, I cancelled a pre-planned vacation to Hawaii (set for
June 4-8) and cancelled my plans to attend an out-of-state training seminar that my
boss had asked me to attend. I intend to go on the vacation I planned long ago for
the week of June 27.
16.

For the reasons stated above and in the prior extension requests,

counsel for Cudjo have not been able to complete, and will not be able to
complete, the opening brief and excerpts by the current June 5, 2009 due date. I
respectfully request a 75-day extension of time, to and including August 19, 2009,
to file and serve the opening brief and excerpts of record. I have exercised
diligence and will file the brief and excerpts within the time requested.
17.

On May 29, 2009, at about 2:30 p.m., I telephoned Bill Bilderback,

counsel for Appellee, and stated that I intended to file this request and the reasons
therefore. Mr. Bilderback informed me that Appellee does not oppose the request.

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I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct. Executed on May 28, 2009 at Los Angeles,
California.

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI

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CERTIFICATE OF SERVICE
I hereby certify that on May 29, 2009, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
By

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI
Deputy Federal Public Defender