Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 vs. Dora B. Schriro, et al., Respondents. William Floyd Smith, Petitioner, ) ) ) ) ) ) ) ) ) ) ) ) No. CV 04-573-PHX-FJM (MS) IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

ORDER

Pending before the Court is Petitioner's "Motion for Determination of Procedural States of Ground V of Petition for Writ of Habeas Corpus" (Doc. # 45), Respondents' Response (Doc. # 46), and Petitioner's Reply thereto (Doc. # 47). Petitioner requests the status of Ground V in his Amended Petition for Writ of Habeas Corpus, precipitated by the absence of a response to it in Respondents' Answer to Petitioner's Amended Petition (Doc. # 33). Respondents argue that Petitioner sought the deletion of the Amended Petition's Ground V in his Motion to Dismiss Unexhausted Claims (Doc. # 31), and that Petitioner is attempting to procure a ruling on the merits of that ground. Petitioner replies that he did not move to dismiss the Amended Petition's Ground V in his Motion to Dismiss Unexhausted Claims, but Ground V from his original Petition for Writ of Habeas Corpus. After a detailed analysis of the pleadings in this case, the Court grants Petitioner's motion of status and notes the following procedural history:

Case 2:04-cv-00573-FJM

Document 48

Filed 12/05/2005

Page 1 of 4

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1.

On March 22, 2004, Petitioner filed a Petition for Writ of Habeas Corpus which alleged eight grounds for relief (Doc. # 1).

2.

On August 5, 2005, Petitioner filed an Amended Petition for Writ of Habeas Corpus (Doc. # 30).1 The Amended Petition deleted Grounds V, VII, and VIII found in the original Petition. The Amended Petition included sub-paragraphs A-L of Ground VI, and deleted sub-paragraphs M-Z, AA-BB. As a consequence, the Court dismissed Grounds V, VII, and VIII of the original habeas petition, and sub-paragraphs M-Z, AA-BB of Ground VI of the original petition. See Order August 5, 2005 (Doc. # 29).

3.

Immediately following this Court's August 5, 2005 Order, Petitioner filed a Motion to Dismiss Unexhausted Claims (Doc. # 31). In that motion Petitioner requested that this court remove the following claims for his Petition for Writ of Habeas Corpus:2 Ground V, Ground VI (sub-paragraphs M-Z, AA-BB), Ground VII, and Ground VIII.

4.

The same day Petitioner filed his Motion to Dismiss Unexhausted Claims, he filed a Motion for Clarification (Doc. # 32) which stated that the, "Amended Petition . . . reflect[s] the same issues petitioner intends to preserve for Federal Habeas Review on Petition for Writ of Habeas Corpus. . . .However out of ignorance, when the petitioner prepared his 1st Amended Petition he changed Ground VI [(A)-(L)] . . . to reflect the consecutive numbers of Ground V [(A)-(L)]. . . .Hence Ground VI became Ground V in the Amended Petition, but still reflects the proper issues as being deleted and dismissed[.]

5.

On August 11, 2005 Respondents filed their Answer to Petitioner's Amended Petition (Doc. # 33). Respondents addressed Grounds I, II, and III on their

The Amended Petition was lodged with the Clerk's Office on July 27, 2005 (Doc. # 28). This appears to be where the confusion arises. Petitioner moved this court to delete claims from his original petition, not his amended petition. -2Case 2:04-cv-00573-FJM Document 48 Filed 12/05/2005 Page 2 of 4
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merits, but argued that Ground IV was unexhausted. Respondents did not address the Amended Petition's Ground V, arguing that Petitioner moved that the original petition's Ground VI [the Amended Petition's Ground V] be deleted in its entirety. On October 26, 2005, Petitioner filed the instant Motion for Determination of Procedural Status to determine why Respondents failed to acknowledge the Amended Petition's Ground V. Respondents are mistaken that Petitioner moved to dismiss the original petition's Ground VI [the Amended Petition's Ground V] in its entirety. Instead, Petitioner did dismiss Ground VI (sub-paragraphs M-Z, AA-BB) and renumbered Ground VI (sub-paragraphs A-L) as Ground V (sub-paragraphs A-L) in his Amended Petition.3 Petitioner did not dismiss Ground VI (A)-(L), and it is properly in his Amended Petition. Accordingly, because of the confusion surrounding Petitioner's Amended Petition and the complicated procedural status of his claims, the Court will provide Respondents additional time to respond to Ground V of Petitioner's Amended Petition. In accordance with the foregoing, IT IS ORDERED THAT: 1. Petitioner's Motion for Determination of Procedural Status (Doc. # 45) is GRANTED to the extent contained herein. 2. Respondents shall file an Answer to Ground V of Petitioner's Amended Petition, if they so choose, no later than January 13, 2006.
3

See Petitioner's Motion to Dismiss Unexhausted Claims, page 2, line 20 (Doc. # 31). Petitioner moved to delete only sub-paragraphs M-Z, AA-BB of the original petition's Ground VI. This is consistent with this Court's August 5, 2005 Order in which the Court recognized that Ground VI sub-paragraphs A-L were renumbered to Ground V. See Order, August 5, 2005, page 1 line 28 - page 2 lines 1-3 (Doc. # 29). -3Case 2:04-cv-00573-FJM Document 48 Filed 12/05/2005 Page 3 of 4

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3. Petitioner shall file his Reply to Respondents' Answer to Ground V no later than February 10, 2006.

DATED this 2nd day of December, 2005.

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