Ernest DeWayne Jones v. Robert K. Wong

Filing 86

EX PARTE APPLICATION FOR ENLARGEMENT OF TIME to File Opposition to Petitioner's Opening 2254(d) Brief on Evidentiary Hearing Claims ; Declaration of Herbert S. Tetef filed by Respondent Robert K. Wong. (Attachments: # 1 Proposed Order)(Tetef, Herbert)

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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,

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Petitioner, UNOPPOSED APPLICATION FOR
ENLARGEMENT OF TIME TO
v.
FILE OPPOSITION TO
PETITIONER’S OPENING 2254(D)
BRIEF ON EVIDENTIARY
KEVIN CHAPPELL, Warden,
HEARING CLAIMS;
California State Prison at San
DECLARATION OF HERBERT S.
Quentin,
TETEF

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CV-09-2158-CJC

Respondent. CAPITAL CASE

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The Honorable Cormac J. Carney
U.S. District Judge

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Respondent respectfully moves for an enlargement of time to and including

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May 9, 2013, in which to file an Opposition to Petitioner’s Opening 2254(D) Brief

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///

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on Evidentiary Hearing Claims (“Opening Brief”). This Application is unopposed

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and is based on good cause as set forth in the attached Declaration.

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Dated: March 1, 2013

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
60955457.doc

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DECLARATION OF HERBERT S. TETEF REGARDING APPLICATION

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FOR ENLARGEMENT OF TIME

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I, HERBERT S. TETEF, hereby declare under penalty of perjury under the

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laws of the United States of America that the following is true and correct:
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I am a Deputy Attorney General of the State of California and represent

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the Respondent in the instant case of Ernest Dewayne Jones v. Kevin Chappell,

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Warden, California State Prison at San Quentin, case number CV 09-2158 CJC.

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2.

Pursuant to this Court’s Order re: Schedule For Merits Briefing Under 28

U.S.C. § 2254(d)(1) and 2254(d)(2), filed on April 16, 2012, Respondent’s

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Opposition is due ninety days after Petitioner’s Opening Brief. Petitioner filed his

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Opening Brief on December 10, 2012. Therefore, Respondent’s Opposition is due

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March 10, 2013.

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3.

Respondent is requesting a sixty-day enlargement of time to file his

Opposition, up to an including May 9, 2013.
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Petitioner’s Opening Brief was originally due on September 10, 2012,

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approximately five months after this Court’s Order for merits briefing. On

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September 4, 2012, Petitioner requested a 180-day extension of time to file his

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Opening Brief. Respondent opposed the 180-day extension request. On September

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6, 2012, this Court granted Petitioner an extension of time until December 10, 2012

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(approximately 90 days) in which to file his Opening Brief.

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5.

Pursuant to the Joint Stipulation of the Parties filed on April 12, 2012,

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and this Court’s Order of April 16, 2012, the parties’ merits briefing is to address

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whether the thirty claims in the Petition satisfy 28 U.S.C. section 2254(d)(1) and/or

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(d)(2). Although Petitioner’s Opening Brief does not address all thirty claims, in

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violation of the parties’ Joint Stipulation and this Court’s Order of April 16, 2012,

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Respondent intends to address all thirty claims in its merits briefing.

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6.

I have been unable to begin working on the Opposition since Petitioner

filed his Opening Brief on December 10, 2012, because of other cases that have
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required my attention. I needed to give these cases priority over the instant case

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because they were assigned to me prior to the filing of Petitioner’s Opening Brief

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and/or because further extensions of time were not appropriate. These cases

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include the following. Since Petitioner filed his Opening Brief, I completed and

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filed an appellant’s opening brief in a capital case in the Ninth Circuit Court of

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Appeals in Scott v. Chappell (12-56799). I also prepared briefing in several habeas

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corpus cases in the United States District Court, including briefing on a motion to

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amend a petition in Williams v. Allison (CV 12-5337 CJC (JCG)), briefing on the

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timeliness of a petition in Davis v. Malfi (CV 06-4744-AHM (MLG)), and an

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answer to a petition in Plascencia v. Uribe (CV 12-8102-MMM (PJW)). In

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addition, I drafted and filed respondent’s briefs in the California Court of Appeal in

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the following cases: People v. Deville (B238053); People v. Aguayo, et al.

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(B236827); People v. Nava (B238947); and People v. Johnson (B240837). I also

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prepared and filed a letter brief in the California Court of Appeal in People v.

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Thomas (B234814). Further, I presented oral argument in the California Court of

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Appeal in the following cases: People v. Rodezno, et al. (B234852); People v.

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Harris (B232568); In re Keven B. (B229800); and People v. Brown (B235561). I

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also was out of the office for several mandatory furlough days. In addition, for the

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last several weeks, I have been preparing a respondent’s brief in the California

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Court of Appeal in People v. Smith, et al. (B235380), a two-defendant, large record,

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nine-issue case that is already on a fourth extension.

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When I complete the respondent’s brief in Smith, I must prepare the

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respondent’s brief in the California Court of Appeal in People v. Diaz (B239373), a

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case in which the court has indicated that no further extensions will be granted. I

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must also prepare briefing in two habeas corpus cases in the United States District

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Court that were assigned to me in early December 2012. I will then begin working

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on the Opposition in the instant case and will be able to dedicate a block of time to

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the Opposition so that I can work almost exclusively on it.
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Although I am unable to immediately begin working on the Opposition in

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the instant case because of the other matters discussed above, another attorney in

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our office who has been out on leave will be returning shortly and will be assisting

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me in the preparation of the Opposition. I anticipate that she will begin working on

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the Opposition within the next week.

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Accordingly, I am respectfully requesting a sixty-day enlargement of

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time, to and including May 10, 2013, in which to file an Opposition to Petitioner’s

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Opening Brief.

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10. On February 28, 2013, I spoke to Petitioner’s counsel Cliona Plunkett

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over the telephone. Ms. Plunkett informed me that she has no objection to this

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Application for an Enlargement of Time.

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Dated this 1st day of March, 2013, at Los Angeles, California.
/s/ Herbert S. Tetef
HERBERT S. TETEF
Deputy Attorney General

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