GOVERNMENT'S MOTION FOR AN
EXTENSION OF TIME TO RESPOND TO
THE DEFENDANT'S § 2255 PETITION
The United States of America, through it's attorneys of record, Benjamin B. Wagner, United States Attorney, and William S. Wong, Assistant U.S. Attorney, hereby submits this request for an extension of time.
For the reasons set forth in Assistant U.S. Attorney William S. Wong's attached Declaration, the government requests an extension of time to file its opposition to December 14, 2012. The record in this case (according to the docket) consists of numerous filings by the defendant and his co-defendants, district court and appellate court decisions related to this case, and other materials. In an effort to respond effectively and comprehensively to the defendant's claims raised in his amended § 2255 petition, the government needs time to obtain adequately review its file and to research the case law and write its opposition to the defendant's § 2255 petition.
The indictment was returned in 1999 and litigation in this case has been ongoing for approximately 13 years. The 2003 jury trial in this matter lasted approximately four weeks. Furthermore, post-trial motions and appeals extended litigation in this matter to the present.
Defendant LU's conviction and sentence has been affirmed by the Court of Appeals and he is now serving a life sentence, plus 60 months in custody. The granting of the government's extension will not serve to prejudice the defendant.
Counsel for the defendant, William Osterhoudt, has been contacted and he has no objection to the government's request for this extension of time.
DATED: November 27, 2012 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney By: /s/ William S. Wong WILLIAM S. WONG Assistant U.S. Attorney
DECLARATION OF WILLIAM S. WONG
I, William S. Wong, hereby declare as follows:
1. I am an Assistant U.S. Attorney for the Eastern District of California and was the counsel assigned to prosecute the case of United States v. John That Luong, etal, 2:99-CR-433-WBS, in which defendant BAO LU is a named co-defendant in that indictment.
2. Defendant LU was convicted by jury verdict after a four week-long trial in 2003 of Hobbs Act robbery and use of a firearm. This Court sentenced the defendant to a term of imprisonment of life, plus 60 months in custody. The defendant appealed his convictions and sentence to the Ninth Circuit which affirmed his convictions and sentence.
3. In his amended § 2255 petition, the defendant raises numerous and complicated legal issues which requires the government to review the trial transcript of 2003, the pre-trial and post-trial motions that were filed, the district court and appellate court decisions in this case, and other materials in order to adequately and comprehensively address the issues raised by the defendant.
4. Counsel for the government has been extremely busy handling his caseload and, in particular, counsel for the government recently filed government responses to §2255 petitions in United States v. Kenneth DeAndre Rodgers, CRS 03-371 MCE/EFB and United States v. Shondor Janell Arceneaux, CRS 03-371 MCE/EFB.
5. Because this case is an old case, the government needs additional time to retrieve its file from storage. I must then locate the documents, trial transcripts, and other material in order to effectively respond to the defendant's § 2255 motion. Furthermore, I will need time to research the many issues raised by the defendant's § 2255 motion and write the government's opposition.
6. Since my last request for an extension of time, I have encountered difficulties in locating all of the transcripts, copies of motions, and other documents needed for a proper response to the defendant's motion. The voluminous nature of the case is very time-consuming in locating the necessary materials in order to perform an ...