IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 16, 2010
UNITED STATES OF AMERICA,
The opinion of the court was delivered by: Hon. Edward J. Garcia Senior United States District Judge
GOVERNMENT'S REQUEST FOR EXTENSION OF TIME TO RESPOND TO DEFENDANT'S §2255 MOTION
For the reasons set forth below, the United States respectfully requests a 40 day extension of time in which to file its brief in opposition to the defendant's § 2255 motion.
1. Following a jury trial, the defendant was convicted of arson in violation of 18 U.S.C. § 844(h)(1) and (i), conspiracy to commit arson in violation of 18 U.S.C. § 844(n), and mail fraud in violation of 18 U.S.C. § 1341. The defendant was sentenced to a term of imprisonment of 15 years. Judgment was entered on November 2, 2007. The defendant is currently serving the term of imprisonment imposed by this court. His projected release date is August 1, 2020.
2. The defendant appealed his conviction but the conviction was affirmed by the Ninth Circuit in a Memorandum Opinion filed on March 30, 2009. The Mandate was issued on June 5, 2009. The defendant filed a petition for a writ of certiorari to the United States Supreme Court but that writ was denied on November 2, 2009. The defendant filed the current petition to vacate, set aside or correct sentence on October 29, 2010.
3. By order dated November 9, 2009, this court ordered the government to respond within 30 days, which made the government's response due on or about December 9, 2010.
4. I have reviewed the defendant's brief and it appears that the defendant raises no issues that have not already been raised, or could have been raised, in his prior appeal, and three prior post-appeal collateral attacks. Additionally, the asserted basis for relief - Federal Rule of Criminal Procedure 11(e) - does not appear to be an appropriate remedy that may be used at this stage of the proceedings.
5. On October 25, 2010, I commenced a jury trial in United States v. Watters, Cr. No. S-09-198 JAM. That trial concluded in early November at about the time I received the court's order in this case. On December 7, 2010, I commenced a jury trial in Los Angeles in United States v. Abdurrahman Yousuf, Cr. No. 10-824 PA. That trial concluded on December 15, 2010. As a result of trial preparation and trial for that case, I was unable to prepare the government's response to the defendant's petition. Going forward, I have an appellate brief due on January 11, 2011, in the case of United States v. Giannini, C.A. No. 10-10274 and I have scheduled, and am hoping to take, two weeks of use or lose annual leave at the end of the calendar year.
6. For the foregoing reasons, I respectfully request an additional 40 days to file the government's brief.
DATED: December 16, 2010 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney By: s/ R. Steven Lapham R. STEVEN LAPHAM Assistant U.S. Attorney
Having read the Government's Request for Extension of Time and good cause appearing therefor, it is hereby ordered that the government shall have until January 18, 2011, in which to file its brief in opposition to the defendant's Motion to Vacate, Set Aside or Correct Sentence.
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