Cole v. Felker, No. 5:2007cv05183 - Document 11 (N.D. Cal. 2008)

Court Description: ORDER GRANTING re 9 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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Cole v. Felker 1 2 3 Doc. 11 DENNIS P. RIORDAN, Esq. (SBN 69320) DONALD M. HORGAN, Esq. (SBN 121547) RIORDAN & HORGAN 523 Octavia Street San Francisco, CA 94102 Telephone: (415) 431-3472 4 5 Attorneys for Petitioner EDDIE COLE 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 11 EDDIE COLE, Petitioner, 12 13 14 15 v. TOM FELKER, Warden of the High Desert State Prison, Respondent. 16 17 18 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. 22 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. 24 25 26 27 28 MOTION FOR EXTENSION OF TIME TO FILE TRAVERSE AND SUPPORTING MEMORANDUM extension of time, from the present due date of August 8, 2008, to and including September 8, 21 23 No. C 07 5183 JF Petitioner Eddie Cole, through his counsel, hereby moves the Court for a thirty-one day 19 20 ) ) ) ) ) ) ) ) ) ) ) 3. Petitioner’s habeas petition challenges his state court conviction for second degree murder and imposition of a related firearm enhancement resulting in a state prison term of 40 years. 4. We did not as Mr. Cole’s counsel at his state court criminal trial. 5. The state filed an Answer to the Court’s Order to Show Cause on July 9, 2008. -1Dockets.Justia.com 1 6. Pursuant to this Court’s May 9, 2008, granting the state’s last extension request 2 concerning the filing of its Answer, petitioner’s traverse is due thirty days after filing of the 3 Answer, i.e., by August 8, 2008. 4 7. This motion is founded on the extraordinary press of business in this office which will 5 prevent us from filing the opening brief by the present due date. Specifically, during the past 6 thirty days, we have been required to file several pre-trial motions (1) entering plea of double 7 jeopardy and seeking to exclude evidence on that basis; (2) requesting exclusion of evidence 8 proffered under Evidence Code section 1101(b); and (3) requesting exclusion of certain expert 9 evidence in a murder prosecution of our client pending in the Los Angeles County Superior 10 Court, People v. Spector, Los Angeles Sup. Ct. No. BA255233; an opposition to a demurrer to a 11 complaint alleging negligence by the state Department of Corrections in connection with its 12 unsupervised release of a parolee who inflicted serious bodily injuries on our clients, Schaller, et 13 al., v. California, San Francisco Sup. Ct. No. CGC-08-473684; oppositions to the prosecution’s 14 pre-trial motions in limine in the Spector matter, supra; a reply in support of a motion for a new 15 trial challenging our client’s conviction for second degree murder, People v. Knoller, San 16 Francisco Sup. Ct. No. 181813-01; a reply in support of an appeal challenging our client’s 17 conviction for leaving the scene of an accident involving death, People v. Harbert, First App. 18 Dist. No. A118186; objections to the magistrate’s findings and recommendation that habeas 19 corpus relief be denied as to a petition challenging our client’s California conviction for second 20 degree murder, Mouser v. Woodford, East Dist. No. 1:05-CV-00903-OWW-WMW; and an 21 extensive motion for a new trial challenging our client’s multiple state court convictions for 22 sexual assault, People v. Chan, Alameda Co. Sup. Ct. No. 156651. 23 8. Furthermore, also during the past thirty days, we have been required to devote a 24 substantial amount of time to the development of post-conviction claims for relief in a capital 25 case involving a 1993 triple homicide in West Memphis, Arkansas, Echols v. Arkansas, 26 Craighead Co. Court No. CR-93-450A, Ark. Supreme Ct. No. CR 99-1060 and 94-928 (state 27 proceedings) and AR Eastern Dist. No. 5:04CV00391-WRW (federal habeas corpus 28 proceedings). -2- 1 9. In addition, and apart from the traverse and supporting memorandum in this matter, 2 during the next thirty days we will be required to file an opening brief challenging our client’s 3 state court conviction for second degree murder and related gang and firearm enhancements 4 resulting in a sentence of 50 years to life in state prison, People v. Campos (San Francisco Sup. 5 Ct. No. 2170342); a reply in support of a state motion for a new trial based on new scientific 6 evidence in the Echols matter, supra; a motion to dismiss the superseding indictment in a federal 7 perjury prosecution, United States v. Barry Lamar Bonds, Northern Dist. No. CR 07 0732 SI; an 8 opening brief on appeal challenging our client’s multiple state court convictions for insurance 9 fraud, People v. Ghazey, First App. Dist. No. A120722; an opening brief challenging our client’s 10 state court conviction for first degree murder resulting in a sentencing of twenty five years to life 11 in state prison, People v. Smith, Fourth App. Dist. No. G040107; a response to the government’s 12 petition for rehearing as to a Ninth Circuit decision reversing our client’s conviction in the 13 district court of Idaho for soliciting the murder of a federal official, United States v. Hinkson, 14 Ninth Cir. No. 05-30303; an opening brief on appeal challenging our client’s multiple third- 15 strike convictions for residential burglary resulting in a sentence of forty years to life in state 16 prison, People v. Bui, First App. Dist. No. A119404; an opening brief in the Ninth Circuit Court 17 of Appeals challenging our client’s federal court convictions on numerous counts of mail fraud 18 and theft of honest services, United States v. Garrido, et al., Central Dist. No. 04-1594 (B) - 19 SVW; and a motion for a new trial challenging our client’s federal court convictions for 20 possession and manufacture of illicit drugs and a related firearm conviction, United States v. 21 Dugan, Northern Dist. No. CR 03-20010 RMW. We will also be required to prepare for a state 22 evidentiary hearing as to our state motion for post-conviction relief on the basis of new scientific 23 evidence in the Echols matter, supra, which hearing is scheduled to commence in September, 24 2008. 25 10. Mr. Cole is incarcerated. 26 11. In view of the foregoing circumstances, I respectfully request that the Court extend 27 the time for filing petitioner’s traverse and supporting memorandum for a period of thirty-one 28 // -3- 1 2 days, from the present due date of August 8, 2008, to and including September 8, 2008. Executed this 8th day of September, 2008, at San Francisco, California. 3 4 /s/ Donald M. Horgan 5 Counsel for Petitioner EDDIE COLE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 EDDIE COLE, Petitioner, v. TOM FELKER, Warden of the High Desert State Prison, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. C 07 5183 JF [PROPOSED] ORDER Good cause appearing therefore, the time for filing petitioner’s traverse and supporting memorandum is extended to and including September 8, 2008. 19 20 9/9/08 DATED: ___________ 21 22 JEREMY FOGEL 23 United States District Judge 24 25 26 27 28 1 2 3 4 5 PROOF OF SERVICE BY MAIL -- 1013(a), 2015.5 C.C.P. Re: 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: 6 7 MOTION FOR EXTENSION OF TIME TO FILE TRAVERSE AND SUPPORTING MEMORANDUM ; [PROPOSED] ORDER 8 9 10 11 12 13 14 15 16 17 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 August 8, 2008 at San Francisco, California. 18 19 20 21 22 23 24 25 26 27 28 /s/ Jocilene Yue