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

Filing 20

Submitted (ECF) Opening brief for review and filed Motion to file oversized brief. Submitted by Appellant Armenia Levi Cudjo, Jr.. Date of service: 11/20/2009. [7139107] (KFB)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMENIA LEVI CUDJO, JR.,
v.

Petitioner-Appellant,

R.K. WONG, Acting 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 TO EXCEED THE PAGE
LIMITATION FOR HIS OPENING BRIEF

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
JOHN L. LITTRELL
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, California
Telephone: [phone]
Facsimile: [phone]
Attorneys for Petitioner-Appellant
ARMENIA LEVI CUDJO, JR.

Pursuant to Ninth Circuit Rule 32-2, Petitioner Armenia Levi Cudjo hereby
moves to file a brief in excess of the 21,000-word and 75-page limitations for an
appellant’s opening brief in a capital case. Petitioner respectfully requests leave to
file a brief containing approximately 27,259 words and 123 pages. A copy of the
opening brief has been filed concurrently. The reasons for the requests are set
forth in the attached declaration of Deputy Federal Public Defender John Littrell.
Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender
DATED:

November 20, 2009

By

/s/ John Littrell
JOHN L. LITTRELL
Deputy Federal Public Defender
Attorneys for Petitioner-Appellant
ARMENIA LEVI CUDJO

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DECLARATION OF JOHN LITTRELL
I, John Littrell, hereby state and declare as follows:
1.

I am a Deputy Federal Public Defender in the Central District of

California. I am licensed to practice law in the State of California and I am
admitted to practice in this Court. I represent Armenia Levi Cudjo in his capital
habeas appeal. Three attorneys from my office – myself, Supervising Deputy
Federal Public Defender Mark Drozdowski, and Deputy Federal Public Defender
Katherine Black, are responsible for drafting and filing Mr. Cudjo’s opening brief.
2.

I submit this application to file an oversize brief in excess of the

21,000-word and 75-page limits for opening briefs in capital cases. I am filing the
brief concurrent with this request. The brief contains approximately 27,259
words. and spans approximately 123 pages.
3.

In order to present the issues in this appeal concisely, my colleagues

and I extensively edited the brief in order to eliminate unnecessary verbiage. We
have briefed only the claims that we strongly believe to have merit. We have
succeeded in cutting the length of our brief by over 20 percent. I am aware that
this Court’s word and page limitations are imposed for good reason.
4.

Nonetheless, given the number of meritorious issues that warrant

review by this Court, and the complexity of those issues, I believe that it is
necessary to submit a brief that exceeds the page limitation set by Ninth Circuit
Rule 32-4. The California Supreme Court found numerous errors in Petitioner’s
trial, and the district court agreed that Petitioner’s constitutional rights were
violated in a number of respects. The district court’s order denying habeas relief
spans 192 pages. Much of the district court’s analysis turned on whether
Petitioner has shown prejudice.

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5.

The sheer number of serious constitutional claims presented in this

appeal required a significant number of words. But in order to address the impact
of those violations and the reasons this Court should grant relief, it was necessary
to delve into detail regarding the inculpatory and exculpatory evidence presented
at trial and establish why the facts of this case meet the varied standards of
prejudice attendant to each of Petitioner’s claims. In particular, because Petitioner
claims that he was prejudiced by the fact that no mitigation evidence whatsoever
was presented at the penalty phase of his trial, it was necessary to describe the
extensive mitigating evidence that could have been presented at the penalty phase,
but was not.
6.

For the foregoing reasons, I believe that exceeding the page limitation

set by this Court is necessary to effectively represent Petitioner and present
meritorious claims to this Court. I therefore respectfully request that the Court
permit me to file a brief that exceeds the page limitation.
7.

On November 20, 2009, I spoke with Respondent’s counsel, Deputy

Attorney General Bill Bilderback, regarding this request. Mr. Bilderback
indicated that he had no objection to my request to exceed the page limitation.
I declare under penalty of perjury that the foregoing is true and correct to
the best of my knowledge.
DATED: November 20, 2009

/s/ John Littrell
JOHN LITTRELL
Deputy Federal Public Defender

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CERTIFICATE OF SERVICE
I hereby certify that on November 20, 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.
Participants in the case who are registered CM/ECF users will be served by
the appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepared, or have dispatched it to a third party commercial carrier for
delivery within 3 calendar days to the following non-CM/ECF participants:
Diana Elliott
Diana Elliott

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