Cole v. Felker

Filing 12

ORDER GRANTING re 10 MOTION for Extension of Time to File Traverse and Supporting Memorandum. Signed by Judge Jeremy Fogel on 9/9/08. (dlm, COURT STAFF) (Filed on 9/10/2008)

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DENNIS P. RIORDAN, Esq. (SBN 69320) DONALD M. HORGAN, Esq. (SBN 121547) RIORDAN & HORGAN 523 Octavia Street San Francisco, CA 94102 Telephone: [phone] Attorneys for Petitioner EDDIE COLE

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA EDDIE COLE, Petitioner, v. TOM FELKER, Warden of the High Desert State Prison, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 07 5183 JF MOTION FOR EXTENSION OF TIME TO FILE TRAVERSE AND SUPPORTING MEMORANDUM

Petitioner Eddie Cole, through his counsel, hereby moves the Court for a thirty day extension of time, from September 8, 2008, to and including October 7, 2008, to file his traverse and supporting memorandum in this habeas matter. In support of this motion, Donald M. Horgan declares under penalty of perjury as follows: 1. This office is counsel for petitioner Eddie Cole. 2. Petitioner filed a verified petition for a writ of habeas corpus on October 9, 2007 and a memorandum in support of the petition on December 6, 2007. The petition and memorandum challenge Mr. Cole's state court conviction for second degree murder and imposition of a related firearm enhancement resulting in a state prison term of 40 years. 3. We did not as Mr. Cole's counsel at his state court criminal trial. 4. On February 13, 2008, the Court issued an order to show cause requiring respondent to respond to the petition within thirty days and permitting Mr. Cole to file a traverse to -1-

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respondent's answer within thirty days thereafter. 5. Respondent subsequently sought and received two extensions of time totaling one hundred and twenty days to respond to Mr. Cole's petition. 6. Respondent filed an answer to the petition on July 9, 2008. Petitioner thereafter sought a thirty-one day extension of time, from the original due date of August 8, 2008, to and including September 8, 2008, to file his traverse to Respondent's Answer. 7. This motion is founded on the extraordinary press of business in this office which will prevent us from filing the traverse and supporting memorandum by today's date. Specifically, during the past thirty days, we have been required to file an extensive reply in support of a state motion for a new trial based on new scientific evidence in a capital case involving a 1993 triple homicide in West Memphis, Arkansas, Echols v. Arkansas, Craighead Co. Court No. CR-93450A, Ark. Supreme Ct. No. CR 99-1060 and 94-928; a response to the government's petition for rehearing as to a Ninth Circuit decision reversing our client's conviction in the district court of Idaho for soliciting the murder of a federal official, United States v. Hinkson, Ninth Cir. No. 05-30303; a motion to dismiss the superseding indictment in a federal perjury prosecution, United States v. Barry Lamar Bonds, Northern Dist. No. CR 07 0732 SI; a petition for review to the California Supreme Court challenging the Court of Appeal's denial of a writ of prohibition based on a double jeopardy claim in the murder prosecution of our client in the Los Angeles County Superior Court, People v. Spector, Los Angeles Sup. Ct. No. BA255233; supplemental briefing in opposition to the Department of Justice's application to extradite our client, a Mexican national and human rights activist accused by the Mexican government of murder, In the Matter of the Extradition of Sergio Alfonso Dorantes Zurita, Northern Dist. No. CR 0790051 MISC (MEJ) MJJ; supplemental briefing in support of our motion for a new trial in the Echols matter, supra; and an extensive motion for a new trial challenging our client's federal court convictions for possession and manufacture of illicit drugs and a related firearm conviction, United States v. Dugan, Northern Dist. No. CR 03-20010 RMW. 8. In addition, and apart from the traverse and supporting memorandum in this matter, during the next thirty days we will be required to file an opening brief challenging our client's -2-

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state court conviction for second degree murder and related gang and firearm enhancements resulting in a sentence of 50 years to life in state prison, People v. Campos (San Francisco Sup. Ct. No. 2170342); an amended complaint alleging negligence by the state Department of Corrections in connection with its unsupervised release of a parolee who inflicted serious bodily injuries on our clients, Schaller, et al., v. California, San Francisco Sup. Ct. No. CGC-08473684; an opening brief on appeal challenging our client's multiple state court convictions for insurance fraud, People v. Ghazey, First App. Dist. No. A120722; an opening brief challenging our client's state court conviction for first degree murder resulting in a sentencing of twenty five years to life in state prison, People v. Smith, Fourth App. Dist. No. G040107; a reply in support of an appeal challenging our client's state court conviction for first degree murder, People v. Posey, First App. Dist. No. A118361; an opening brief on appeal challenging our client's multiple third-strike convictions for residential burglary resulting in a sentence of forty years to life in state prison, People v. Bui, First App. Dist. No. A119404; an opening brief in the Ninth Circuit Court of Appeals challenging our client's federal court convictions on numerous counts of mail fraud and theft of honest services, United States v. Garrido, et al., Central Dist. No. 041594 (B) - SVW; and a petition for review in the California Supreme Court as to the Court of Appeal's denial of an appeal challenging our client's state court convictions for attempted murder, burglary, assault with a deadly weapon, and arson, resulting in a life sentence, People v. Engel, Third App. Dist. No. C054157. 9. Mr. Cole is incarcerated. 10. In view of the foregoing circumstances, I respectfully request that the Court extend the time for filing petitioner's traverse and supporting memorandum for a period of thirty days, from September 8, 2008, to and including October 7, 2008. Executed this 8th day of September, 2008, at San Francisco, California.

/s/ Donald M. Horgan Counsel for Petitioner EDDIE COLE

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9/9/08 DATED: ___________ EDDIE COLE, Petitioner, v. TOM FELKER, Warden of the High Desert State Prison, Respondent. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) No. C 07 5183 JF ---R-------S----- ORDER [P --OPO - ED]

Good cause appearing therefore, the time for filing petitioner's traverse and supporting memorandum is extended to and including October 7, 2008.

JEREMY FOGEL United States District Judge

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Re:

PROOF OF SERVICE BY MAIL -- 1013(a), 2015.5 C.C.P. Cole v. Felker No. C 07 5183

I am a citizen of the United States; my business address is 523 Octavia Street, San Francisco, California 94102. I am employed in the City and County of San Francisco, where this mailing occurs; I am over the age of eighteen years and not a party to the within cause. I served the within: MOTION FOR EXTENSION OF TIME TO FILE TRAVERSE AND SUPPORTING MEMORANDUM ;

[PROPOSED] ORDER

on the following person(s) on the date set forth below, by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Post Office mail box at San Francisco, California, addressed as follows: Lisa Ashley Ott Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

[x] BY MAIL: By depositing said envelope, with postage thereon fully prepaid, in the United
States mail in San Francisco, California, addressed to said party(ies); [ ] BY PERSONAL SERVICE: By causing said envelope to be personally served on said party(ies), as follows: [ ] FEDEX [ ] HAND DELIVERY I certify or declare under penalty of perjury that the foregoing is true and correct. Executed on September 8, 2008 at San Francisco, California. /s/ Jocilene Yue