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

Filing 8

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. Unopposed Motion to extend time to file Opening brief until 06/05/2009 at 05:00 pm. Date of service: 04/29/2009. [6902335] (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.

) 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 June 5, 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: April 29, 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

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
June 5, 2009, to file and serve his appellant’s opening brief and excerpts of record.
2.

The opening brief is currently due for filing on May 6, 2009. I request

an extension of time for a period of 30 days, to and including June 5, 2009, to file
the opening brief and excerpts.
3.

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

which to file his opening brief. Petitioner has sought and received two prior
extensions of time, totaling 60 days, 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. 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-0307948-GW; CV-96-02584-ABC; CV-05-04971-JFW; CV-07-00519-FMC; and CV
94-06417-AHS. During the past 30 days, since this Court granted Petitioner’s
second request for an extension of time in which to file his opening brief, I have
spent time fulfilling the following responsibilities in these other capital cases:

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5.

In case no. CV-05-04971-JFW, I, along with my co-counsel, filed an

amended federal petition for writ of habeas corpus on April 21, 2009. I also spent
one day out of the office, on April 15, 2009, reviewing documents in the
possession of the Los Angeles County District Attorney’s Office in response to an
informal discovery request in another of my capital habeas cases, C.D. Cal. case
no. CV 07-00519-FMC.
6.

During the past 30 days, I have spent time reviewing the record,

doing legal research, and drafting a portion of Mr. Cudjo’s opening brief.
However, I will be unable to continue working on Mr. Cudjo’s opening brief,
because I am expecting a baby sometime in the next two weeks and am scheduled
to begin a six-month maternity leave on May 4, 2009. In my absence, my cocounsel on Mr. Cudjo’s appeal, Deputy Federal Public Defenders Mark R.
Drozdowski and John L. Littrell will complete and file the opening brief. Mr.
Drozdowski and Mr. Littrell 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. 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:
7.

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, which contains twenty-nine claims and sub-claims, most of which
the Respondent contends are procedurally barred, is due on May 22, 2009.

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8.

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

both of which involve prisoners serving terms of life: Maldonado v. Scribner, CV
06-2050-VAP (FMO) and In re Paul Gaul on Habeas Corpus, California Supreme
Court case number S170759, in which Mr. Littrell assisted in drafting an original
habeas petition that was filed in the California Supreme Court on February 25,
2009.
9.

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

counsel of record in approximately twenty-five federal criminal trial cases, several
of which are set for trial in the coming months. He is currently preparing for trial
in a fraud case, United States v. Shanta Body, CR 08-1403-SVW. Trial is set for
June 9, 2009. It is expected to last three days.
10.

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.

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11.

On April 29, 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 April 29, 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 14 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 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 30-day extension of time, to and including June 5,
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 I have been assigned 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 May 8, 2009. I have spent
numerous hours the past several months reviewing the record and conducting legal
research in his case.
4.

I am the sole attorney representing Mario Guerra in his noncapital

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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. On April 13, 2009, I filed a letter of
supplemental authorities.
6.

I am the sole attorney assigned to represent the appellant in the

noncapital habeas appeal Trotter v. Harrison, Ninth Circuit Case No. 07-55451.
I represented Trotter at the oral argument held on March 4, 2009, and I spent time
beforehand preparing for the argument.
7.

That same day, March 4, my co-counsel filed the appellant’s opening

brief in Smith v. Harrison, Ninth Circuit Case No. 08-56915. My co-counsel did the
bulk of the work on the brief; however, I drafted two of the three legal arguments and
spent numerous hours working on those arguments.
8.

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.

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Woodford, Ninth Circuit Case No. 08-55216. I spent time in February trying to help
an attorney prepare for the oral argument held on February 27 in Visciotti v. Ayers,
Ninth Circuit Case No. 06-75628. I also spent time reviewing a reply brief that
another attorney filed on March 9 in Bamrick v. Martel, Ninth Circuit Case No. 0655080. In March and April, I spent a considerable amount of time reviewing the
record and consulting with lawyers in Atkins v. Ryan, Ninth Circuit Case No. 0855619, and Lee v. Jacquez, Ninth Circuit Case No. 08-55919, where our appellant’s
opening briefs are due next month, and reviewing the record and a draft reply brief in
Peterson v. Hall, Ninth Circuit Case No. 08-55165, where the reply is due in May.
9.

As CHU supervisor, I also had to spend time in February 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. I also spent time preparing for status
conferences held in Jennings on March 25 and April 24, 2009.
10.

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

since the Court set the present briefing schedule in late November 2008, and that
number has increased in the past month or so.

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11.

Since the prior extension request was filed in late March, I

was out of the office (and unable to work on this appeal) on the following days:
March 30 and 31 on vacation; April 1-3 at a mandatory national habeas corpus
conference where I was on a panel for a presentation; and April 16-21 on a preplanned and -paid vacation.
I declare under penalty of perjury under the laws of the United States that the
foregoing is true and correct. Executed on April 29, 2009 at Los Angeles, California.

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI

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CERTIFICATE OF SERVICE
I hereby certify that on April 29, 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