The opinion of the court was delivered by: Honorable Anthony W. Ishii
REQUEST FOR EXTENSION OF TIME TO FILE OPPOSITION BRIEF; ORDER DECLARATION OF COUNSEL; AND
Pursuant to the Court's Order of October 19, 2011, the United States' opposition to Defendant Jeffrey Alan Brohn's motion pursuant to 28 U.S.C. § 2255 is due on January 23, 2012. As explained more fully in the accompanying declaration of counsel, the undersigned counsel does not believe that he can fully respond to the motion by January 23, 2012. Therefore, the United States requests an extension of time in which to file an opposition brief and an order requiring the United States' response to be due on or before March 23, 2012.
This extension of time will be sufficient to allow the United States to potentially obtain an order from the Court certifying a conflict of interest between Defendant and former counsel. Such an order may be necessary for the United States to fully investigate Defendant's claims of ineffective assistance of counsel and, if necessary, obtain declarations from Defendant's former counsel regarding the facts at issue in the present motion.
The United States provides the accompanying declaration of counsel in support of this request for extension of time to file opposition brief.
Dated: December 15, 2011 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney By: /s/ Grant B. Rabenn GRANT B. RABENN Assistant U.S. Attorney DECLARATION OF GRANT B. RABENN
I, Grant B. Rabenn, hereby declare and state as follows:
1. I am employed as an Assistant United States Attorney for the Eastern District of California in Fresno. I make this declaration in support of the United States' request for extension of time to file its responsive pleading. I believe the facts contained in this declaration are true and correct. If called to testify, I would and could testify accordingly.
2. I did not handle the criminal prosecution of Jeffrey Alan Brohn. I was assigned to this case for the purpose of responding to Brohn's motion made pursuant to 18 U.S.C. § 2255. On September 7, 2011, I received the court's order requiring the United States to file a responsive pleading to Brohn's motion made pursuant to 18 U.S.C. § 2255.
3. On October 14, 2011, the United States filed a request for extension of time to file its opposition brief based on the fact that Defendant had asserted numerous grounds for appeal, including a claim of ineffective assistance of counsel, which requires a detailed review of transcripts of court proceedings. Because Defendant did not provide the United States with copies of the court transcripts, the United States was required to obtain those transcripts on its own.
4. On October 19, 2011, the Court granted the United States' request for an extension of time, which extended the deadline for the United States to file its responsive pleading to January 23, 2012. Since that time the United States has worked diligently to obtain the numerous court transcripts relevant to Defendant's motion.
5. In addition to obtaining numerous court transcripts, the United States must also investigate the facts underlying Defendant's claims of ineffective assistance of counsel. An overview of the potential facts at issue is provided below.
6. As background, Defendant was first charged on August 14, 2008 in related case United States v. Brohn (1:08-cr-00271 AWI) for
(1) use of interstate facility of interstate commerce to induce minor to engage in criminal sexual activity in violation of 18 U.S.C. § 2422 and (2) travel with intent to engage in illicit sexual conduct in violation of 18 U.S.C. § 2422(b). *fn1 Several months later, Defendant was charged on January 22, 2009 in the present case United States v. Brohn (1:09-cr-00025 AWI) for failing to register as a sex offender in violation of 18 U.S.C. 2250(a). See Court Record ("C.R.") 1. A plea agreement settling both cases was entered March 30, 2009. See C.R. 7.
7. Defendant was represented by three separate attorneys at different times throughout these proceedings; he has asserted ineffective assistance of ...