The opinion of the court was delivered by: Hon. Edward J. Garcia
Brian J. Petersen P ETERSEN L AW O FFICE 360 Ritch Street, Suite 201 San Francisco, CA 94107 Tel: (415) 777-3174 Fax: (415) 777-3175 Email: firstname.lastname@example.org Attorney for Defendant ENRIQUE FONSECA MARTINEZ
STIPULATION AND [ORDER CONTINUING STATUS DATE; ) DECLARATION OF COUNSEL
Counsel for the government and defendant respectfully submit this Stipulation and [Proposed] Order requesting that the February 18, 2011 Status date in this matter be continued to March 18, 2011. Counsel agree and stipulate that defendant lost his former immigration counsel, through no fault of his own, that former immigration counsel apparently did nothing before essentially going out of business, that defendant has new immigration counsel now and needs time to investigate the validity of defendant's prior deportation(s). Counsel also agree and stipulate that defense counsel was in trial in the Northern District from about January 19, 2011 to February 10, 2011 in the case of US v. Zaragoza 08CR0083 PJH, and that trial preparation and trial time in that matter has delayed defense counsel's work on this case.
Counsel further stipulate to the exclusion of time under the Speedy Trial Act from the date of this Order until March 18, 2011. Exclusion of time is proper pursuant to 18 U.S.C. 3161(h)(8)(A) and (B) and local code T4 because the requested continuance is intended to allow the defense additional time to prepare its case, thereby ensuring effective assistance of counsel.
DECLARATION OF BRIAN J. PETERSEN
I am an attorney at law, licensed to practice before all courts of the State of California, and I have been retained by defendant herein ENRIQUE FONSECA MARTINEZ ("defendant"). I make this declaration from facts within my own personal knowledge, except where stated on information and belief, in which case I believe the facts stated to be true. If called to testify in this matter, I could and would do so competently.
1. Defendant is charged, inter alia, with being present in the US after being previously deported, a violation of 8 U.S.C. §1326(a) and (b), and presently has an immigration "hold."
2. The validity of any former deportation(s) is a potential issue in any prosecution for violation of §1326. (See United States v. Arrieta, 224 F.3d 1076, 1079 (9th Cir.2000).) I cannot adequately or competently represent defendant without the assistance of qualified immigration counsel to help me investigate this issue.
3. When I was retained, defendant had already hired the Immigration Practice Group (IPG) in San Francisco. This matter has been continued several times while (I thought) they were working on this and other immigration issues regarding defendant.
4. Unfortunately, it appears that none of that work was done. On November 17, 2010, two days before the last setting date on this case, the San Francisco City Attorney filed a lawsuit against IPG, alleging amongst other things that it was being run by a non-attorney who had surrendered his own license in 2008.
5. Since then, defendant's wife has retained a new immigration attorney, whom I am informed and believe is working on the ...