Opinion
No. CR S-02-0418 GEB GGH P
10-06-2011
UNITED STATES OF AMERICA, Respondent, v. FERNANDO LOPEZ-CUEVAS, Movant.
AMENDED ORDER
Movant is a federal prisoner proceeding pro se with a motion to vacate, correct or set aside his sentence pursuant to 28 U.S.C. § 2255. Movant filed his § 2255 motion on October 13, 2009. Respondent filed an opposition on April 16, 2010. On May 3, 2010, movant filed a request for an extension to file a reply. On May 14, 2010, the undersigned granted movant a 30 day extension to file a reply. Movant did not file a reply or otherwise communicate with the court until approximately 16 months later. On October 3, 2011, movant filed a traverse and a motion for to leave to file the traverse. Movant states that it took so long to file a traverse because he is indigent, cannot speak or write English and no other inmates were able to help him until recently. Movant's motion is denied and the traverse is stricken. Movant was provided an extension in May 2010, but did not file a traverse or otherwise communicate his difficulties to the court for 16 months. While great latitude is provided for pro se litigants, movant seeking good cause to excuse 16 months of silence and to file a traverse 16 months late is well beyond acceptable-even for a person who alleges that he cannot speak or write English.
During trial, on February 11, 2004, a in camera hearing was held out of the presence of the jury and the prosecution, between the trial court, movant and movant's attorney as movant requested counsel be relieved and new counsel appointed. This hearing was not transcribed and does not appear in the trial transcript. However, the hearing contains information relevant to the instant § 2255 motion which contains 24 claims of ineffective assistance of counsel.
Therefore, Court Reporter Kimberly Bennett shall prepare a transcript of this hearing. Once the transcript is prepared, Court Reporter Bennett shall forward it to the Office of the Clerk for filing under seal. No briefing is required in response to the transcript and the court will not review any briefing if submitted.
Attorney-client privilege has already been waived in this case (Doc. 186). Although the hearing seemingly contains no prejudicial information with respect to counsel, the undersigned will keep it sealed as persons with different perspective might disagree.
Accordingly, IT IS HEREBY ORDERED that:
1. The order filed October 6, 2011, (Doc. 208) is vacated.
2. Movant's motion to file a traverse (Doc. 206) is denied and the traverse (Doc. 207) is stricken;
3. Court Reporter Kimberly Bennett shall prepare a transcript of the February 11, 2004, in camera hearing. Once the transcript is prepared, Court Reporter Bennett shall forward it to the Office of the Clerk for filing under seal. No briefing is required in response to the transcript and the court will not review any briefing if submitted.
If the parties wish to obtain a copy of the hearing transcript, they must contact Court Reporter Kimberly Bennett, and are hereby authorized to obtain the sealed transcript paying such fees as are ordinarily paid.
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Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH: AB - lope0418.ord