FOR PUBLICA TION UNITED STATES COURT OF APPEALS FOR THE NI

NTH CIRCUIT

RICHARD LO UIS ARNOLD PHILLIPS, Petit

ioner - A ppellant,

v. STEV EN W . ORN OSKI, Warde n, Respondent - Appellee. No. 04-99 005 D.C. No. CV-F-92-05 167-REC Eastern Dist rict of Cali fornia, Fresno
ORDER

Before: REINH

ARDT, Circuit J

udge The Cali fornia A

ttorney Genera l’s req

uest for a forty -five day

extension of time to file his answering b rief is hereb y GRANTED. This is the second time that this court has granted the California Attorney General an extension of time to file an answer ing brief in this capital habeas appeal. The first extension was for sixty day s. The California Attorney General will now have a total of 195 days to complete his brief. Compare 28 U.S. C. §2266(c)( 1)(A), giving the f ederal c ourt of app eals 120 day s to hear a nd decide capital ha beas corp us appeals if the At torney Genera l of the sta

te reques ts and 

# FILED
AU G 21 2007 CATHY A. CA

TTERSON, CLERK U.S. COURT OF A PPEALS2

receive s certif

ication under 28 U.S .C. §2265 that the st ate is in c omplia nce with certain con ditions
. The cour t is awar e of the c omple xity inv olved in liti gating a de ath penalt y case, and it would appear that the current Attorney General of California is as well. T he recor ds are la rge, the issues are

difficult , and the p rocedural posture is often com

plicated. It is under standable t hat attorn eys w orking on both sides of death pena lty ca ses often r equire a g reat dea l of tim e to prepa re adequa tely f or these im portant and

difficult appeals, and this cou

rt grants e xtensions w ith no reluctan ce. It i s equally

true that judges, no mat

ter how di ligent, f

requently require a considerable amount of tim e to arrive at a final disposition of capital appeals. In 1995, contrary to the normal r ule in the federal courts, this court reversed the district court’s dismissal of this petitioner’s federal habeas petition and ordered the distric t court to he ar the merits of hi s petition regarding hi s conviction , despite the fact that his direct appeal of his sent ence had no t yet b een resolved by t he Californ ia Suprem

e Court. We al lowed thepetitioner to procee d with his gu ilt phase const

itutional c laims because i t had been f ifteen y ears sinc e his convic tion and we an

ticipated further delay

in the Cal ifornia c ourt sy stem before th ere wa s a final dete rmination of h is senten ce. Phillips v. Vasquez , 56 F.3d 1030 (9th Cir.3

1995). Our action did not constitute a criticism of the California courts, but rather a recogni tion that de ath penalt y case s are com

plicated a nd difficu lt and that s tate courts, including California’s, often require a great deal of time to resolve them properly. Capital cases frequently are active in the state courts for many years before they reach the federa l courts, where, contrary

to public perception, they are ordinaril y proc essed m ore quickly . It wou ld be a ser ious mi stake to tr

y to ru sh cases tha t impl icate suc h impor

tant m oral, soc ial, and c onstitutiona l issues in either the state or federal court and to resolve them finally with less than full care and attention. The cour t assum es that the

Attorney Genera l of the St ate of California a lso understand s the diffi culty a nd com plexity of death penalty c ases. H e no doubt recognize s that they

may require much m

ore judi cial time than othe r cases, and that even t

he prepar ation of a s ingle brie f ma y take more timethan the co urt itself would be a fforded t o consider and decide the entire

appeal should he decid e on behalf of the state to opt into the

expedited procedure . Under the circ umsta

nces, we have no qualms about granting the California Attorney G eneral an extraordinary am ount of time to prepare his brief in this or any other ca pital case. MOTION GRANTED