                                                                           FILED
                                                                            AUG 21 2007
                              FOR PUBLICATION                         CATHY A. CATTERSON, CLERK
                                                                         U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


RICHARD LOUIS ARNOLD PHILLIPS,                   No. 04-99005

          Petitioner - Appellant,                D.C. No. CV-F-92-05167-REC
                                                 Eastern District of California,
  v.                                             Fresno

STEVEN W. ORNOSKI, Warden,
                                                 ORDER
          Respondent - Appellee.


Before: REINHARDT, Circuit Judge

       The California Attorney General’s request for a forty-five day extension of

time to file his answering brief is hereby GRANTED.

       This is the second time that this court has granted the California Attorney

General an extension of time to file an answering brief in this capital habeas

appeal. The first extension was for sixty days. 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 federal court of appeals 120 days to hear and decide

capital habeas corpus appeals if the Attorney General of the state requests and
receives certification under 28 U.S.C. §2265 that the state is in compliance with

certain conditions.

      The court is aware of the complexity involved in litigating a death penalty

case, and it would appear that the current Attorney General of California is as

well. The records are large, the issues are difficult, and the procedural posture is

often complicated. It is understandable that attorneys working on both sides of

death penalty cases often require a great deal of time to prepare adequately for

these important and difficult appeals, and this court grants extensions with no

reluctance. It is equally true that judges, no matter how diligent, frequently

require a considerable amount of time to arrive at a final disposition of capital

appeals.

      In 1995, contrary to the normal rule in the federal courts, this court reversed

the district court’s dismissal of this petitioner’s federal habeas petition and ordered

the district court to hear the merits of his petition regarding his conviction, despite

the fact that his direct appeal of his sentence had not yet been resolved by the

California Supreme Court. We allowed the petitioner to proceed with his guilt

phase constitutional claims because it had been fifteen years since his conviction

and we anticipated further delay in the California court system before there was a

final determination of his sentence. Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.


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1995). Our action did not constitute a criticism of the California courts, but rather

a recognition that death penalty cases are complicated and difficult and that state

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 federal courts, where, contrary to public perception, they are

ordinarily processed more quickly. It would be a serious mistake to try to rush

cases that implicate such important moral, social, and constitutional issues in

either the state or federal court and to resolve them finally with less than full care

and attention.

      The court assumes that the Attorney General of the State of California also

understands the difficulty and complexity of death penalty cases. He no doubt

recognizes that they may require much more judicial time than other cases, and

that even the preparation of a single brief may take more time than the court itself

would be afforded to consider and decide the entire appeal should he decide on

behalf of the state to opt into the expedited procedure. Under the circumstances,

we have no qualms about granting the California Attorney General an

extraordinary amount of time to prepare his brief in this or any other capital case.

                                               MOTION GRANTED




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