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

Filing 18

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Unopposed Motion to extend time to file Opening brief until 11/20/2009. Date of service: 11/12/2009. [7128840] (KFB)

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
)
)
)
)
)
)

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 one week, to and including November 20, 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 Katherine Froyen Black. Cudjo will not make another
request to extend this deadline.

Dated: November 12, 2009

Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender

By /s/ Katherine Froyen Black
KATHERINE FROYEN BLACK
Deputy Federal Public Defender
Attorneys for Petitioner-Appellant
ARMENIA CUDJO

DECLARATION OF KATHERINE FROYEN BLACK
I, Katherine Froyen Black, 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 one of the attorneys assigned to represent Cudjo in this appeal. I
make this declaration in support of Cudjo’s request for a one-week extension of
time, to and including November 20, 2009, to file and serve his appellant’s
opening brief and excerpts of record. We have made good progress since the last
extension request but cannot adequately represent Cudjo and meet our obligations
to the Court without the additional time requested herein.
2.

Cudjo filed, and the Court granted, seven 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 251 days and making
the current due date for these documents November 13, 2009. I make this request
for an extension of one week because, given 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.

The district court sua sponte granted a certificate of appealability

(“COA”) on one claim, involving lethal injection, but we are seeking to expand
the COA in the opening brief to include several other claims.
4.

On October 29, 2009, I returned from a 24-week family leave that I

took after my daughter was born in May. Prior to my leave, I was one of three
attorneys sharing responsibility for the Cudjo opening brief, and I was the attorney
with primary responsibility for Cudjo’s case, having represented him the longest.
The previous extension request, filed on October 16, 2009, asking for a three-week

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extension to and including November 13, 2009, was filed in part so that, upon my
return to the office, I could review and assist in editing the brief prior to the filing
date.
5.

In my absence, my co-counsel, Mark Drozdowski and John Littrell,

actively worked on the opening brief, drafting most of the claims prior to my
return. Since my return on October 29, I have been able to assist with drafting the
remaining claims and editing the brief; however, I have been back only two weeks,
and I am requesting the additional time in part so that I can adequately edit the
remaining portions of the brief that I am responsible for.
6.

Mr. Littrell has an active caseload in the FPD’s trial unit. He has

drafted parts of the brief addressing several claims. However, he was out of the
country on a prepaid vacation for most of September and was unable to work on
the brief then. He will also require the additional seven days to complete and edit
his claims.
7.

In my absence, my co-counsel and supervisor on the case, Mark

Drozdowski, took primary responsibility for drafting Cudjo’s brief. Mr.
Drozdowski has completed drafts of most of the sections of the brief, but he needs
additional time to complete drafts of his final sections and to review and edit the
drafts that Mr. Littrell and I have completed. He has been unable to make more
progress on these tasks since he filed the previous extension request on October
16, because of his obligations as the supervising attorney of the FPD’s capital
habeas unit and because of his responsibilities in other cases. In addition, Mr.
Drozdowski was out of the office for two weeks on a preplanned vactation, which
he did not cancel because over the summer he had canceled several previous
vacations due to obligations on this and other cases. Although Mr. Drozdowski

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did not cancel his two-week vacation, he continued to work on the brief while on
vacation.
8.

Although most sections of the brief are drafted, we ask for the

additional time to complete and edit the brief because we want the final product to
be as complete and accurate as possible, reflecting the diligence required given the
high stakes and serious nature of this capital case. To this end, Federal Public
Defender Sean Kennedy wants time to review a draft of the brief before we file it,
and we require the additional week so that he can read and edit the brief and we
can incorporate his suggestions into the final product. Mr. Kennedy supports this
extension request.
9.

Finally, we require the additional seven days to complete the excerpts

of record, which are somewhat more extensive than usual given the extraordinary
nature of this case (a death case). We are asking for an additional week in part
because we want the excerpts to be correct and to conform to all of this Court’s
requirements; we do not want to file the brief until we have had time to adequately
review the citations to the record, so that we can make sure that our citations are
accurate and the excerpts are useful to the Court.
10.

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 November 13, 2009 due
date. I respectfully request a one-week extension of time, to and including
November 20, 2009, to file and serve the opening brief and excerpts of record.
My co-counsel and I have exercised diligence and will file the brief and excerpts
within the time requested. We recognize that the court has been gracious in
granting the prior requests, and we will not seek another extension of time to file
the opening brief and excerpts.

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11.

We had expected to be able to meet the current deadline despite the

time constraints detailed above; that is why we did not file this extension request
earlier.
12.

On November 12, 2009, I left a message for Bill Bilderback, counsel

for Appellee, informing him that I intended to file this extension request and the
reasons therefore. He returned my call and informed me that he does not oppose
the request.
I declare under penalty of perjury under the laws of the United States that
the foregoing is true and correct. Executed on November 12, 2009 at Los
Angeles, California.
/s/ Katherine Froyen Black
KATHERINE FROYEN BLACK

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CERTIFICATE OF SERVICE
I hereby certify that on November 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/ Katherine Froyen Black
KATHERINE FROYEN BLACK
Deputy Federal Public Defender