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

Filing 4

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Unopposed Motion to extend time to file Opening brief until 04/06/2009. Date of service: 02/24/2009. [6820096] (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 APPELLANT’S 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
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.1

) 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
Petitioner-Appellant, Armenia Levi Cudjo, Jr., hereby requests an extension
of 30 days to and including April 6, 2009, to file his opening brief. 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 Declarations of Katherine Froyen Black and
Mark R. Drozdowski.

Dated: February 24, 2009

Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender
MARK R. DROZDOWSKI
Deputy Federal Public Defender
By

/s/ Katherine Froyen Black
KATHERINE FROYEN BLACK
Deputy Federal Public Defender
Attorneys for Petitioner-Appellee

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In conformance with Rule 43(c)(2) of the Federal Rules of Appellate
Procedure, Petitioner-Appellant hereby substitutes R.K. Wong, Warden, San
Quentin State Prison, for Robert L. Ayers, Jr., who is now the former Warden.

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 in the Central District of California (“FPD”), and I am one of the
attorneys assigned to represent Armenia Levi Cudjo, Jr., in this appeal. I make
this declaration in support of Mr. Cudjo’s request for a 30-day extension of time,
to and including April 6, 2009, to file and serve his appellant’s opening brief and
excerpts of record.
2.

The opening brief is currently due for filing on March 5, 2009. I

request an extension of time for a period of 30 days, to and including April 6,
2009, to file the opening brief and excerpts.
3.

This is Petitioner-Appellant’s first request for an extension of time in

which to file his opening brief.
4.

I do not believe that I will be able to complete the opening brief by

the current due date, in part because of other case responsibilities. Since this
Court set the current briefing schedule, on November 26, 2008, I have spent time
fulfilling the following responsibilities in other capital cases:
5.

In November and December 2008, I assisted in the preparation of a

Petition for Writ of Habeas Corpus in a capital habeas case assigned to the FPD,
case no. 07-08310-JVS. The petition was filed on December 17, 2008. Although
I am not counsel of record in the case, I was temporarily assigned to the case in
order to assist current counsel of record in completing the petition within the one-

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year statute of limitations imposed by the Antiterrorism and Effective Death
Penalty Act. This case is one of the largest federal capital habeas matters now
pending in the Central District -- a habeas corpus challenge to a California
judgment of convictions and sentences of death involving 15 separate criminal
incidents, including 12 first-degree murder convictions. The reporter’s transcripts
alone comprise 243 volumes. I participated in planning and supervising the
investigation of the case, in drafting and rewriting claims for the petition, and in
proofreading, editing, and preparing the petition for filing. I have also assisted,
albeit in a more limited role, in the continued investigation, consultation with
experts, and other tasks involved in preparing to file a state exhaustion petition in
the California Supreme Court on or before March 17, 2009. My responsibilities in
this voluminous and complex case consumed a large portion of my time during
November and December 2008.
6.

In addition to my role as counsel of record for Petitioner-Appellant

Cudjo, I am appointed counsel of record for five other capital habeas petitioners in
the Central District. My responsibilities in these cases have been ongoing: C.D.
Cal. case nos. CV-03-07848-GW; CV-96-02584-ABC; CV-05-04971-JFW; CV07-00519-FMC; and CV 94-06417-AHS.
7.

In one of these cases, case no. CV 94-06417-AHS, the FPD was

appointed to replace federal habeas counsel for the petitioner on August 14, 2008,
and I was assigned to the case shortly thereafter. Since my assignment to this
case, in early September 2009, I have spent considerable time reviewing the prior
pleadings in both state and federal court, including the state appellate briefing,

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four prior Petitions for Writ of Habeas Corpus that have been filed on the
petitioner’s behalf in the California Supreme Court, and four prior Petitions for
Writ of Habeas Corpus that have been filed in federal district court. I have also
received and reviewed many case materials that were forwarded to me by prior
federal habeas counsel. On January 15, 2009, the district court issued a
scheduling order allowing the petitioner leave to file an amended petition in
federal court on or before March 2, 2009. Since then, I have spent much of my
time preparing to file an amended petition. I have a request currently pending for
a one-week extension of time in which to prepare and file this amended federal
petition for writ of habeas corpus, to and including March 9, 2009. Should my
request be granted, I anticipate spending the majority of time between now and
March 9, 2009, preparing and filing the amended federal petition in case no. CV
94-06417-AHS.
8.

Finally, in January 2009, I spent a portion of my time reviewing

records in another of my capital habeas cases, CV 07-00519-FMC, in which a state
exhaustion petition is currently pending in the California Supreme Court. I
invested the time in reviewing the case records in order to prepare an informal
discovery request, which I sent to the District Attorney’s Office on or about
January 23, 2009.
9.

My co-counsel on Mr. Cudjo’s appeal, Deputy Federal Public

Defenders Mark R. Drozdowski and John L. Littrell, also have case and other
professional obligations that have prevented them from completing the necessary
record review, legal research, and writing for the opening brief in this capital case.

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Mr. Drozdowski’s supervisory and other case obligations, which have prohibited
him from devoting substantial time to preparing the opening brief, are detailed in
his attached declaration. Mr. Littrell’s other case obligations are as follows:
10.

Mr. Littrell has been assigned to represent the petitioner in another

capital habeas case: Bradford v. Woodford, No. CV 97-6221-TJH. The traverse
to the petition for writ of habeas corpus, which contains twenty-nine claims and
sub-claims, most of which the Respondent contends are procedurally barred, is
due on March 20, 2009.
11.

Mr. Littrell is also counsel of record in two non-capital habeas cases,

both of which involve prisoners serving terms of life. In one case, Maldonado v.
Scribner, CV 06-2050-VAP (FMO), he is preparing post-hearing briefing
following an evidentiary hearing on Mr. Maldonado’s Batson claim. Mr. Littrell’s
initial post-hearing briefing, which includes a statistical analysis of peremptory
strikes, was due February 23, 2009. Mr. Littrell also has an additional brief
scheduled to be filed in that case on March 23, 2009. In the other case, In re Paul
Gaul, Mr. Littrell has an original habeas petition due in the California Supreme
Court no later than February 25, 2009. He also must represent Mr. Gaul at a lifer
parole hearing at Avenal State Prison on March 3, 2009.
12.

In addition to these capital and non-capital habeas cases, Mr. Littrell

is counsel of record in approximately thirty federal criminal trial cases, several of
which are set for trial in the coming months. Mr. Littrell is currently scheduled to
begin a jury trial in United States v. Kanesha Hughes, CR 08-892-GW, a fraud
case, on March 10, 2009. Trial will last approximately three days. Mr. Littrell is

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also scheduled to begin a jury trial in United States v. Arthur Leroy Shoot, CR
08-1178-SJO, a sex offense case with a mandatory minimum sentence of 25 years,
on April 7, 2009. Trial will last approximately one week.
13.

In spite of these ongoing obligations in other cases, my co-counsel

and I have exercised and will continue to exercise due diligence with respect to
this appeal. Despite our diligence in pursuing Petitioner’s appeal, we require
additional time to complete the opening brief.
14.

On February 24, 2009, I spoke with Deputy Attorney General James

William Bilderback II, who is counsel of record for Respondent-Appellee, and
informed him of my intention to file this motion. Mr. Bilderback advised me that
Respondent has no objection to the motion.
I declare under the penalty of perjury that the foregoing is true and correct.
Executed on February 24, 2009, at Los Angeles, California.

/s/ Katherine Froyen Black
KATHERINE FROYEN BLACK

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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 15 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 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 30-day extension of time, to and including April 6, 2009, to file
and serve his appellant’s opening brief and excerpts of record.
2.

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 that have been assigned to
me to write, because of my obligations in other cases and as CHU supervisor. Since
the Court set the current due date for the brief on November 26, 2008, I have engaged
in the following work in other cases:
3.

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 presently due by March 9, 2009. Although
I have not made as much progress on Fairbank’s brief as I had hoped, I have spent
numerous hours the past several months reviewing the record and conducting legal
research in his case.

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4.

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 on January 20, 2009. I spent a lot of time in January
working on the brief and conducting legal research and record review.
5.

I am the sole attorney representing the appellant in the noncapital

habeas appeal Menefee v. Felker, Ninth Circuit Case No. 08-55657. I filed Menefee’s
reply brief and supplemental excerpts of record on January 26, 2009. Because of an
error in the ECF filing, the brief was submitted for review again the next day. I was
solely responsible for researching and writing the reply brief, and I spent numerous
hours in January working on the reply.
6.

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

briefs prepared by other lawyers in our office or by outside co-counsel in cases in
which our office is appointed. In January 2009, I spent a considerable amount of time
reading and editing drafts of opening briefs filed in McKenzie v. Brown, Ninth Circuit
Case No. 07-56135, Earp v. Ayers, Ninth Circuit Case No. 08-99005, and James v.
Woodford, Ninth Circuit Case No. 08-55216. I have also spent time this month
helping an attorney prepare for the oral argument scheduled for February 27, 2009 in
Visciotti v. Ayers, Ninth Circuit Case No. 06-75628.
7.

As CHU supervisor, I also had to spend time the past month or so

preparing status reports in two capital habeas cases in which our office was recently
appointed, Jennings v. Brown, E.D. Cal. Case No. 91-CV-00684-OWW, and Romero
v. Wong, C.D. Cal. Case No. CV 09-0410 JVS.

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8.

My supervisory duties have consumed at least roughly 20 hours per week

since the Court set the present briefing schedule in late November 2008.
9.

Cudjo’s opening brief is presently due on March 5, 2009. The day

before, I have an oral argument scheduled in Trotter v. Harrison, Ninth Circuit Case
No. 07-55451, and an appellant’s opening brief due in Smith v. Harrison, Ninth
Circuit Case No. 08-56915. I have co-counsel in Smith but I have yet to complete my
portions of the brief. I will need to devote considerable time to Trotter and Smith
between now and March 4.
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct. Executed on February 24, 2009 at Los Angeles,
California.

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI

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CERTIFICATE OF SERVICE

I hereby certify that on February 24, 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