Opinion
2:16-cr-00055-KJD-NJK
01-04-2023
UNITED STATES OF AMERICA, Plaintiff, v. ROBERT LAMON POLK, Defendant.
JASON M. FRIERSON United States Attorney District of Nevada, ROBERT L. ELLMAN Assistant United States Attorney, Attorneys for the United States.
JASON M. FRIERSON United States Attorney District of Nevada, ROBERT L. ELLMAN Assistant United States Attorney, Attorneys for the United States.
GOVERNMENT'S MOTION TO EXTEND TIME TO FILE A RESPONSE TO DEFENDANT'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE [ECF NOS. 46, 52]
Certification: This motion is timely.
Pursuant to Local Rule IA 6-1, the United States submits this first motion for extension of time to file the government's response to Defendant's motion under 28 U.S.C. § 2255. The response is presently due on January 16, 2023, per this Court's order dated December 15, 2022. ECF No. 52. The United States respectfully requests a 28-day extension of time, to and including February 13, 2023, to respond to Polk's motion to vacate his sentence. In support of this request, undersigned counsel states the following:
1. On January 31, 2017, pursuant to a plea agreement with the government, Polk pleaded guilty to two counts of felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1)
and 924(a)(2). In May 2017, this Court sentenced him to a total of 77 months' imprisonment. Polk did not appeal.
2. On September 9, 2019, Polk filed a motion to vacate sentence under 28 U.S.C. § 2255. On December 15, 2022, the Court ordered the government to respond to Polk's motion by January 16, 2023.
3. Undersigned counsel is the newly-appointed chief of the appellate division at the U.S. Attorney's Office for the District of Nevada. In addition to handling criminal appeals, the appellate division is responsible for litigating post-conviction motions, including § 2255 motions.
4. With the former appellate chief's departure on December 16, 2022, the appellate division is down one full-time AUSA (from five to four). This circumstance has increased the workload of the remaining appellate AUSAs.
5. Undersigned counsel has assigned the responsibility for this matter to himself, based on the temporarily heightened workloads of appellate division AUSAs. I was not involved in the case in the district court, and I will have to rely exclusively on my own review of the record because the trial AUSA who handled the case in 2017 is no longer with the office.
6. Undersigned counsel assures the Court that he has been diligent and does not seek this extension for purposes of delay. Based on my review of the motion and docket items, undersigned counsel believes he can respond to Polk's claims without obtaining an affidavit or affidavits from Polk's defense counsel. If I conclude that such affidavit(s) are necessary, I will promptly file a request for an order directing defense counsel to provide them.
ECF No. 31 (plea agreement).
ECF No. 39 (judgment).
ECF No. 46.
ECF No. 52.
WHEREFORE, based on the foregoing, the government respectfully requests an extension to and including February 13, 2023, to file its response to Polk's motion to vacate sentence.
ORDER
Based upon the pending motion of the government, and good cause appearing, IT IS HEREBY ORDERED that the government shall have until February 13, 2023, to file its response to Defendant Robert Polk's Section 2255 motion to vacate sentence; and
IT IS FURTHER ORDERED that if government counsel concludes an affidavit from Polk's defense counsel is necessary to respond to the ineffective-assistance-of-counsel claims, the government will promptly file a request for an Order directing defense counsel to provide that affidavit.