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

Filing 67

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Motion to take judicial notice of Orders on Morales v. Cates, 757 F. Supp. 2d 961 (N.D. Cal. 2010) and Mitchell Sims v. California Department of Corrections and Rehabilitation, et al., CIV 1004019, Superior Court, State of California, Marin County, filed December 10, 2011. Date of service: 01/27/2012. [8048243] (JLL)

IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ARMENIA LEVI CUDJO, JR.,
Petitioner-Appellant,
v.
ROBERT AYERS, JR., Warden,
Respondent-Appellee.

)
) CA No. 08-99028
)
) D.C. No. CV-99-08089-JFW
)
)
)
)
)
)

APPELLANT’S SECOND REQUEST FOR JUDICIAL NOTICE

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

Petitioner and Appellant Armenia Cudjo requests that the Court take judicial
notice of an additional and more recent order in Morales v. Cates,1 757 F. Supp. 2d
961 (N.D. Cal. 2010) Stipulation and Order Schedule for Completing Discovery,
dated November 3, 2011, and the final order on Summary Judgment in the case of
Mitchell Sims v. California Department of Corrections and Rehabilitation, et al.,
CIV 1004019, Superior Court, State of California, Marin County, filed December
10, 2011. Copies of these court orders are attached hereto for the Court’s
convenience.
Federal Rule of Evidence 201(b)(2) permits this Court to take judicial notice
of a fact that is “not subject to reasonable dispute in that it is . . . (2) capable of
accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned.” This Court “may take judicial notice of its own records
in other cases, as well as the records of an inferior court in other cases.” United
States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). A court must take judicial
notice when requested by a party and supplied with the correct information, Fed. R.
Evid. 201(c)(2), and judicial notice may be taken at any time during the
proceeding. Fed. R. Evid. 201(d).
Cudjo requests that the Court take judicial notice of these orders because
they provide background information on the current state of California’s lethal
1

Petitioner’s prior request for judicial notice of pleadings from the Morales
litigation is before this Court.
1

injection regulations, and the state of legal challenges to them. The sole claim that
the district court certified in this appeal is Cudjo’s lethal injection challenge. The
district court order certifying the claim for appeal states: “In light of the fact that
the issue is not thoroughly settled, and the identical claim is already being litigated
in the Northern District of California, the Court denies relief on the claim, but
grants a certificate of appealability. This will allow Armenia’s claim to be
reviewed by the Ninth Circuit Court of Appeals after the litigation before the
district court in Morales v. Tilton, on the issue of the constitutionality of the lethal
injection method, is completed.” ER 191.
The order in Morales indicates that discovery is ongoing in that case until at
least August 15, 2012 concerning the new California lethal injection protocol, Cal.
Code Regs. tit. 15 § 3349 et seq, adopted on July 30, 2010, effective August 29,
2010, which replaced OP 770. The Sims order invalidates this revised lethal
injection protocol, which was promulgated after OP 770, was invalid.
Given the COA issued by the district court in this case, these two court
orders will be of assistance to the Court in connection with the disposition of the
appeal and ruling on the lethal injection issue.
The orders are a proper subject of judicial notice under Fed. R. Evid.
201(b)(2). They are “not subject to reasonable dispute” and originate from a
source whose “accuracy cannot reasonably be questioned.” Wilson, 631 F.2d at
2

119; Fed. R. Evid. 201(b). Cudjo has supplied this Court with the necessary
information to take judicial notice and thus judicial notice is mandatory. Fed. R.
Evid. 201(c)(2).
Respectfully submitted,
SEAN K. KENNEDY
Federal Public Defender

DATED: January 27, 2012

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

3

CERTIFICATE OF SERVICE
I hereby certify that on January 27, 2012, I electronically filed the foregoing
Appellant’s Second Request for Judicial Notice 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.

/s/ John L. Littrell
JOHN L. LITTRELL

4