Ernest DeWayne Jones v. Robert K. Wong

Filing 79

OPPOSITION Opposition re: APPLICATION for Extension of Time to File Opening Brief on the Application of 28 U.S.C. Section 2254 78 filed by Respondent Robert K. Wong. (Cook, David)

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KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
XIOMARA COSTELLO
Deputy Attorney General
HERBERT S. TETEF
Deputy Attorney General
State Bar No. 185303
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Respondent

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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ERNEST DEWAYNE JONES,

Petitioner, DEATH PENALTY CASE

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CV-09-2158-CJC

v.
MICHAEL MARTEL, Acting
Warden of California State Prison at
San Quentin,
Respondent.

OPPOSITION TO PETITIONER’S
EX PARTE APPLICATION FOR A
180-DAY EXTENSION OF TIME
TO FILE AN OPENING BRIEF ON
THE APPLICATION OF 28 U.S.C. §
2254(d)
Honorable Cormac J. Carney
United States District Judge

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Respondent hereby opposes Petitioner’s request for an additional 180 days in

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which to file his brief addressing the application of 28 U.S.C. § 2254(d) to his

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claims.

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On April 16, 2012, this Court granted Petitioner until September 12, 2012 to

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file his § 2254(d) brief. Thus, Petitioner was initially granted 150 days – five

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months -- to file his brief. Petitioner is now requesting an additional 180 days –

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another six months -- to file the brief, for a total of 330 days – nearly one year.

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Petitioner’s request for 330 days, nearly one year, to file his § 2254(d) brief, is

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patently excessive and unreasonable.

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Petitioner’s state court judgment became final in 2003. Granting Petitioner

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eleven months to file his § 2254(d) brief in this case will frustrate the state’s

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interest in obtaining finality of the state court judgment as well as its right to punish

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a convicted offender. See Duncan v. Walker, 533 U.S. 167, 179, 121 S. Ct. 2120,

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150 L. Ed. 2d 251 (2001) (“The 1-year limitation period of § 2244(d)(1) quite

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plainly serves the well-recognized interest in the finality of state court judgments”).

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Petitioner’s reliance on “anticipated and unanticipated litigation commitments

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in other cases” is insufficient to demonstrate good cause, particularly since

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Petitioner has failed to identify what work has been completed thus far, and what

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additional work remains to be completed. Further, counsel on both sides

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continually face “anticipated and unanticipated litigation commitments” and

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staffing changes. However, Petitioner has not explained why the cited cases took

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precedence over this case during the past five months, or why other cases must take

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precedence over this case in the next sixth months. Absent a firm deadline, other

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cases will always seemingly take priority. Further, contrary to counsel’s averment,

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Pinholster and Richter have simplified not complicated the issues to be briefed.

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Petitioner’s request for an additional 180 days to file his § 2254(d) brief is

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unduly excessive and is not supported by good cause. Therefore, this Court should

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deny the request and set a firm deadline for Petitioner’s Pinholster brief to be filed.
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Alternatively, Respondent requests that the Court provide interim due dates for the

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briefing of Petitioner’s claims, i.e., Claims 1 through 10 must be briefed in final

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form and provided to Respondent by October 10, 2012; Claims 11 through 20 must

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be briefed in final form and provided to Respondent by November 9, 2012; and

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Claims 21 through 30 must be briefed in final form and provided to Respondent by

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December 24, 2012.

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Dated: September 5, 2012

Respectfully submitted,

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KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
XIOMARA COSTELLO
Deputy Attorney General

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/s/ Herbert S. Tetef
HERBERT S. TETEF
Deputy Attorney General
Attorneys for Respondent

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LA2009505879
60848414.doc

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