AMENDED PETITIONER'S UNOPPOSED REQUEST FOR EXTENSION OF TIME TO FILE MOTION FOR EVIDENTIARY HEARING

DEBORAH BARNES, Magistrate Judge.

Petitioner ALPHONSO HAYDEN, JR., by and through his appointed counsel, requests this Court to grant him an extension of time to and including January 19, 2018, to file a motion for an evidentiary hearing (or any notice to the court that such a hearing is not requested). This request is unopposed and is based on the attached Declaration of Hannah R. Labaree.

DECLARATION OF HANNAH R. LABAREE

I, Hannah R. Labaree, declare as follows:

1. I am an attorney licensed to practice in California and admitted to practice in this Court. I am employed with the Office of the Federal Defender. I represent the Petitioner, Alphonso Hayden, Jr., in this matter.

2. Mr. Hayden has filed a Motion for Relief under 28 U.S.C. § 2255, to which the government has objected on the ground that Mr. Hayden's petition was not filed within the time statutorily allowed for such motion. CR 22.

3. On November 23, 2016, this Court issued an order appointing the Office of the Federal Defender to represent Mr. Hayden for the purpose of opposing the Motion to Dismiss. More specifically, this Office is seeking an evidentiary hearing on Mr. Hayden's claim to equitable tolling if "evidence supporting equitable tolling can only be presented through an evidentiary hearing or that it would be more expedient to present evidence via an evidentiary hearing." CR 47 at 2.

4. To inquire into the need for or utility of an evidentiary hearing, undersigned counsel has reviewed over 600 pages of Mr. Hayden's mental health records; has met with Mr. Hayden to discuss the factual issues underlying his equitable tolling claim; has had follow up phone conversations with Mr. Hayden; and is in the process of gathering additional evidence in support of that claim.

5. Such additional investigation has been focused on reaching out to the numerous mental health professionals at the California Department of Corrections who have been involved with Mr. Hayden's case over the course of his lengthy incarceration (since 2001). The process of identifying those individuals, tracking them down, and reaching out to them, has been cumbersome and the primary impetus for this request to extend the deadline in this matter is the need for additional time to speak to these mental health professionals regarding Mr. Hayden's history of mental illness.

6. The lead investigator in this case continues to work to collect all relevant information, but it has been a slow process for various reasons, including Mr. Hayden's mental health and his custody status.

7. The investigator is in the process of obtaining relevant records relating to relevant factual issues but the process of obtaining such records is slow.

8. Prior to filing the most recent request for extension (CR 57), undersigned counsel had not yet received a particular set of records related to Mr. Hayden's mental health. Those records were received approximately two weeks before this filing, and additional time is needed to review the documents as well as conduct follow up investigating stemming from the information contained therein.

9. As noted prior to the last request for time, the assigned investigator has recently started preparations for trial in the case of United States v. Shehadeh, Cr. 2:16-0038 MCE, set for trial in February 2018. That case involves 60 felony counts and voluminous, and continues to demand a good portion of the investigator's time.

10. Outreach to mental health professionals involved in Mr. Hayden's care bears directly on the question of whether an evidentiary hearing would assist this Court in adjudicating Mr. Hayden's claim for equitable tolling. Defense counsel's inquiry into these matters requires that we identify which (if any) individuals would need to testify and their availability to do so, as well as the utility of the potential live testimony.

11. Pursuant to this Court's original order, any Motion for an Evidentiary hearing is due 30 days after the November 23, 2016 filing of the order. Five earlier, unopposed extensions were sought and granted, and the current deadline to submit briefing on the question of an evidentiary hearing is November 13, 2017.

12. Based on the foregoing, I ask for the deadline to file a potential Motion for Evidentiary hearing to be moved forward approximately 90 days, to be due on or before January 19, 2018. Mr. Hayden and counsel have exercised diligence and believe that they can file the brief by the requested date.

13. Deputy Attorney General Justain P. Riley has graciously indicated he has no objection to this request.

The foregoing is true and correct. Executed under penalty of perjury this 14th day of November, 2017 at Sacramento, California.

ORDER

Pursuant to the parties' stipulation, and good cause appearing therefor, the deadline for the Petitioner to file a Motion for Evidentiary hearing (or any notice informing this Court that such a hearing is not requested) is February 12, 2018. The respondent's reply shall be filed no later than February 26, 2018, and any reply by petitioner to the response shall be filed no later than March 5, 2018.