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

Filing 12

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Unopposed Motion to extend time to file Opening brief until 09/23/2009. Date of service: 08/12/2009. [7025562] (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 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 35 days, to and including September 23, 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: August 12, 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
ARMENIA CUDJO

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 13 attorneys and
its caseload of about 63 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 35-day
extension of time, to and including September 23, 2009, to file and serve his
appellant’s opening brief and excerpts of record.
2.

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

for extensions of time to file and serve the opening brief and excerpts, bringing the
total amount of extensions granted thus far to 165 days, and making the current
due date for these documents August 19, 2009. I make this request for an
extension of 35 days because, given my schedule over the next month, 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.
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

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brief to include the claims on which we had an evidentiary hearing in district court
and probably on one record-based claim.
4.

One of the two other attorneys assigned to this case, 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 the FPD’s trial unit. He has been assigned to draft the argument
for one of the claims in the appeal (the one he handled at the evidentiary hearing),
but he has not finished drafting that argument.
5.

I have been unable to complete 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 previous extension request on June 3, 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. I filed
Fairbank’s opening brief and excerpts of record on July 7, 2009, and spent the
bulk of my work time between June 3 and July 7 working on Fairbank’s appeal.
7.

I am the sole attorney representing Mario Guerra in his noncapital

habeas appeal Guerra v. Felker, Ninth Circuit Case No. 07-55891. I filed
Guerra’s opening brief and excerpts of record on June 10, 2009, and spent
numerous hours between June 3 and June 10 finalizing the brief for filing.
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.

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This Court affirmed the judgment against Trotter last March. On June 10, 2009, I
filed a petition for a writ of certiorari on Trotter’s behalf. I spent a decent amount
of time between June 3 and June 10 working on the petition.
9.

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

C.D. Cal. Case No. 05-7606-RGK. On June 8, 2009, I filed Panah’s informal
reply in support of his state exhaustion petition. I spent several days between June
3 and June 8 drafting portions of the reply.
10.

I represent 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.) I filed Cain’s amended federal
habeas petition on June 15, 2009, and spent some time the week before working
on the petition. His traverse is due on August 28, and I anticipate having to spend
some time finalizing that document for filing.
11.

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

Jennings v. Brown, E.D. Cal. Case No. 91-CV-00684-OWW. I filed petitioner’s
supplemental motion for an evidentiary hearing on July 8, and was solely
responsible for drafting the motion. The reply in support of our motion is due on
September 8.
12.

My supervisory duties have consumed roughly 20 hours per week

since June 3.
13.

I worked every day, including weekends and holidays, between April

22 and July 10, 2009 to try to meet my obligations in this case and the other cases
listed above. To give myself more time to try to complete my work, I cancelled

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two pre-planned vacations out of state that I had scheduled for early June and
around the Fourth of July, and also cancelled plans to attend an out-of-state
training seminar that my boss had asked me to attend.
14.

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 August 19, 2009 due date.
I respectfully request a 35-day extension of time, to and including September 23,
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.
15.

On August 7, Bill Bilderback, counsel for Appellee, and I exchanged

telephone messages in which I stated that I intended to file this extension request
and he stated that Appellee did not oppose any such request.
I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct. Executed on August 12, 2009 at Los Angeles,
California.

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI

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CERTIFICATE OF SERVICE
I hereby certify that on August 12, 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