Ernest DeWayne Jones v. Robert K. Wong

Filing 90

EX PARTE APPLICATION to Exceed Page Limitation to File Opposition to Petitioner's Opening 2254 (d) Brief on Evidentiary Hearing Claims filed by Respondent Kevin Chappell. (Attachments: # 1 Proposed Order)(Tetef, Herbert)

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KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETE
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
LEAVE TO FILE OPPOSITION
v.
TO PETITIONER’S OPENING
2254(D) BRIEF ON EVIDENTIARY
HEARING CLAIMS IN EXCESS
KEVIN CHAPPELL, Warden,
OF 100 PAGES; DECLARATION
California State Prison at San
OF HERBERT S. TETEF
Quentin,
CAPITAL CASE
Respondent.
The Honorable Cormac J. Carney
U.S. District Judge

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CV-09-2158-CJC

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Respondent Kevin Chappell, the Warden of the California State Prison at San

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Quentin, California, respectfully requests leave to file his Opposition to Petitioner’s

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Opening 2254(d) Brief on Evidentiary Hearing Claims in excess of 100 pages.

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This Application is unopposed and is supported by good cause as set out in the

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attached declaration of Herbert S. Tetef.

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Dated: June 14, 2013

Respectfully submitted,

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KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETE
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
61027619.doc

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DECLARATION OF HERBERT S. TETEF
I, HERBERT S. TETEF, hereby declare under penalty of perjury under the
laws of the United States of America that the following is true and correct:
1.

I am a Deputy Attorney General of the State of California and represent

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

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Chappell, Warden, California State Prison at San Quentin, case number CV 09-

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2158 CJC.

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2.

Respondent’s Opposition to Petitioner’s Opening 2254(d) Brief on

Evidentiary Hearing Claims is currently due on June 24, 2013.
3.

Pursuant to this Court’s Order of September 6, 2012, Respondent’s

Opposition is to be limited to 100 pages.
4.

Respondent’s Opposition addresses the application of 28 U.S.C. §

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2254(d) to each of the thirty claims in the Petition. The Opposition also presents

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arguments that claims are procedurally barred and barred under Teague v. Lane,

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489 U.S. 288, 310, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989).

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5.

Petitioner’s thirty claims are presented in a 432-page Petition that relies

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upon nearly 3,500 pages of exhibits presented in state court. Many of the thirty

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claims contain numerous sub-claims.

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6.

While drafting the Opposition, I have remained cognizant of the Court’s

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order concerning the page limitation and have attempted to draft as concise a

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pleading as possible. For example, I did not include a separate statement of the

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facts of the crime in the Opposition since a statement of the facts is contained in

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Respondent’s Answer. I also significantly limited my discussion of the standard of

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review for evaluating claims under 28 U.S.C. § 2254(d). In addition, where

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possible, I limited my discussion of the general case law that is applicable to some

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of the claims. However, in order to clearly and adequately address the application

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of 28 U.S.C. § 2254(d) to each of the thirty claims, and to present the arguments

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that certain claims are barred, Respondent’s Opposition must exceed 100 pages.

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However, it need not exceed 170 pages.

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Respondent notes that although this Court’s Order of September 6, 2012,

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also limited Petitioner’s Opening Brief to 100 pages, Petitioner was granted leave

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to file his Opening Brief in excess of 100 pages, not to exceed 150 pages. Further,

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even though Petitioner’s Opening Brief was 146 pages, it only addressed the

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application of 28 U.S.C. § 2254(d) to ten of the thirty claims. Respondent will

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address all thirty claims in no more than 170 pages.

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Accordingly, Respondent respectfully requests leave to file his

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Opposition to Petitioner’s Opening 2254(d) Brief on Evidentiary Hearing Claims in

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excess of 100 pages.

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9.

On June 11, 2013, I spoke to Petitioner’s counsel Cliona Plunkett over

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

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Application.

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Dated this 14th day of June, 2013, at Los Angeles, California.
/s/ Herbert S. Tetef
HERBERT S. TETEF
Deputy Attorney General

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