Free Appeal Transcript - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _____________________ Curtis Graylin Simmons, Plaintiffs, vs. Dora Schriro, et al., Defendants. ) ) ) No. ) ) ) ) ) ) )

CV 03-2172-PHX-NVW Phoenix, Arizona October 16, 2007 2:15 p.m.

BEFORE: THE HONORABLE NEIL V. WAKE UNITED STATES DISTRICT COURT JUDGE (Motion Hearing) APPEARANCES: For the Petitioner: Gail Gianasi Natale By: Gail Gianasi Natale, Esq. 817 N. Second Street Phoenix, AZ 85004 For the Defendants: Office of the Attorney General Criminal Appeals Section By: Jim D. Nielsen, Esq. 1275 W. Washington Phoenix, AZ 85007

Official Court Reporter: Laurie A. Adams, RMR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, SPC 43 Phoenix, Arizona 85003-2151 (602) 322-7256 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

Case 2:03-cv-02172-NVW

Document 85

Filed 01/31/2008

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P R O C E E D I N G S THE COURTROOM DEPUTY: CV 03-2172, Curtis Graylin

Simmons versus Doris Schriro, et al., on for motion hearing. Counsel, please announce. MS. NATALE: for Mr. Simmons. MR. NIELSEN: Good afternoon, Your Honor. J.D. Good afternoon, Your Honor. Gayle Natale
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Nielsen from the attorney general's office for the respondent. THE COURT: I apologize for being late. I just kept
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digging further and further back through this file. First of all, Ms. Natale, what's the current status of the appeal from the denial of the motion for reconsideration? MS. NATALE: Mr. Simmons timely filed a petition for I do have a copy of it, but

review to the Court of Appeals. I -THE COURT: status is. MS. NATALE: THE COURT: appointed as counsel? MS. NATALE:

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I'm just wondering what the procedural

It's at the Court of Appeals. Did they rule on your motion to be
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They pretty much -- they sent the motion I wrote a letter saying, wait a

back to the trial court.

minute, I want you guys to rule on it and they said oh, sorry. And then nothing has happened. THE COURT: I don't understand that.
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MS. NATALE:

Well, I filed, I guess, kind of

preemptory motion in the Court of Appeals. THE COURT: I have a copy of that in my file. Perhaps

you sent me a courtesy copy when you filed, well, sometime. MS. NATALE: THE COURT: your motion. MS. NATALE: Right. And then what I got was a letter Yes. Saying that the superior court had ignored
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from the clerk, a copy of a letter from the clerk to the clerk in superior court saying this should have been filed in your court, and then I wrote back and said, wait a minute, I really wanted to file it in -THE COURT: Court of Appeals. MS. NATALE: THE COURT: correspondence? MS. NATALE: THE COURT: or not? MS. NATALE: THE COURT: MS. NATALE: THE COURT: MS. NATALE: Apparently not. They sent it to the superior court? Right. Have you contacted the superior court? Yeah.
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The one I have shows it was filed in the

Yes. And so when did -- was that

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Gee.

I'm glad I brought --

Does the Court of Appeals have your motion
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THE COURT:

You know they can't collect their paycheck

if they don't rule on things within 60 days. MS. NATALE: THE COURT: the Court of Appeals? MS. NATALE: the Court of Appeals. THE COURT: What's the status of it? Has there been Pro per petition has been filed timely in Oh, really? Okay.

So what's the status of the petition in
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in response or any action on it? MS. NATALE: Not yet. I don't think -- I think the
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time for response has not expired yet. THE COURT: MR. NIELSEN: Mr. Nielsen? I haven't seen a copy of it, Judge. I

don't know if -- typically, the county attorney's office would respond to a non-capital case like that. I would have no
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problem, based on my familiarity with the case, responding to it. But I haven't even seen a copy of it. THE COURT: MS. NATALE: THE COURT: MS. NATALE: timely. Well, and when was that filed? September 3rd. Of this year? Yeah. Under Houston v. Lack it was
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He mailed it on September 3rd. THE COURT: Now, the arguments that are raised in that

petition are the three ineffective assistance of counsel arguments, correct, or you tell me.
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MS. NATALE: Honor. THE COURT: MR. NIELSEN: Your Honor? THE COURT: MR. NIELSEN:

Okay.

If I may have a moment, Your

Do you know, Mr. Nielsen? No, I do not, Your Honor.
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Yes. If you want, when I get back to my

office I can walk across the street to the Court of Appeals and I can check on the status. THE COURT: No. Let me just back up. Now, I am
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looking at the answer to the petition for writ of habeas corpus filed in this court on April 22nd, 2004. Appendix L is a copy

of a pro per petition post-conviction relief pursuant to Rule 32. It's dated -- well, I can't read the date on it. 18th of
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October, 2001. Ms. Natale, was that the first or second post conviction relief? I don't see -- I don't have the record. I

don't -- I have portions of the record from the superior court which -MS. NATALE: I'm sorry, Your Honor. I do, but I
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didn't bring it with me. THE COURT: Well, this is the one that I have in my And what I Also
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file that was supplied by the attorney general. am -- well, actually, actually I do.

I have them both.

Exhibit Q is another petition for post conviction relief filed

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pro per on April 16, 2002. So that comes October 2001. MS. NATALE: Yeah.

So that would be the second one.

He filed a second identical

petition after the superior court dismissed his first one. Then the motion for reconsideration, which is pretty much the subject of the Ninth Circuit remand, was filed in April. don't remember the date. THE COURT: April 2002, you said? MS. NATALE: THE COURT: For Reconsideration. petition. I believe so. Well, I have a document here titled Motion It's Exhibit S to the answer to the
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I

And that document is that in my record?

But of course, this is stamped April 2. MS. NATALE: April -- according to the May 8 minute
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entry from Judge Wilkinson, the motion for reconsideration was filed April 16th, 2002. your order. THE COURT: MS. NATALE: May 16th. THE COURT: Wilkinson? MS. NATALE: THE COURT: MS. NATALE: May 8th. Of what year. '07. What date is the order from Judge I don't know what document. It's very confusing. It's your order of And that was attached to Document 42,

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THE COURT:

That's not what I'm talking about.

I'm

talking about way back at the beginning, what this lawsuit is about. MS. NATALE: The minute entry -- the order from Judge
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Wilkinson refers to the April 16th, 2002 motion for reconsideration. THE COURT: record. Okay. I don't find that anywhere in my

I guess the Court of Appeals didn't have it, either,

because you sought leave to supply it to the Court of Appeals, correct? MS. NATALE: had included it. THE COURT: I see. It's Exhibit Q. No, it's not. I did. But then I found out Mr. Nielsen
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Apparently, correct me if I'm wrong, on or about April 16, Mr. Simmons filed two documents in the superior court. He filed a
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motion to reconsider the denial of the first petition, and he filed an identical second petition. Is that correct, Mr. Nielsen? MR. NIELSEN: THE COURT: MS. NATALE: Yes, as far as I recall, Your Honor. So what's in my record was -Your Honor, I don't remember the exact I
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dates but I do know they were different dates in April. don't remember which preceded which. THE COURT:

If they weren't the same date, they were
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pretty close, right, Mr. Nielsen?

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MR. NIELSEN: THE COURT:

Yes. And in looking through this, I don't think

the record here in this court never included the motion for reconsideration, did it? MR. NIELSEN: THE COURT: dated 02 April 24. Mr. Nielsen? I don't believe so, Your Honor. There is a motion for reconsideration What does that mean in the superior court, Is that April 24 of 2002?
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02 April 24.

MR. NIELSEN: MS. NATALE: MR. NIELSEN: THE COURT:

That would -That would make sense. That would make sense, Your Honor. But that would be a motion for
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reconsideration of denial of the second petition, wouldn't it, or is this the one that -MS. NATALE: No. If it was a motion for
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reconsideration it would have been from the -THE COURT: Weren't there two motions for

reconsideration just like there were two petitions? MS. NATALE: THE COURT: MS. NATALE: No. Okay. I don't think so. Then this would be the one -14:25:41

That's the motion for reconsideration of

the dismissal of the first petition. THE COURT: That's Exhibit S to the answer to the And -- okay. Now, I have
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petition for writ of habeas corpus.

been trying to do what the Court of Appeals directed me to do,

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but there's some challenge because of the terseness of their language. And frankly, I'm trying to also give Mr. Simmons --

well, let's just say the tie goes to the runner when it comes to criminal justice, okay, which means if it's not -- if it's real close I'm going to give him the benefit of uncertainty. The second petition in the superior court was denied because it was untimely, right? MS. NATALE: THE COURT: Yes, Your Honor. And it was untimely because -- well, it
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was filed late, and he appealed from the denial of the second petition rather than appealing from the denial of the first petition, correct? MS. NATALE: I think so, because his motion for I can't be absolutely If you want to reschedule

reconsideration was still pending. certain. I'm sorry, Your Honor.

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this hearing -THE COURT: No, I really want to discuss this. This

has been hanging around. already.

I have rescheduled this several times

When I looked at this record thoroughly sometime ago it appeared to me that the motion for reconsideration of the denial of the first petition was an appeal time extending motion under the mailbox rule. Now, I remember -- I don't

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remember the dates or anything but I remember looking at it thinking that was probably the case.
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Mr. Nielsen, do you have a different view of it? MR. NIELSEN: Well, my understanding, Judge, was that The trial court denied that. He

he filed his first petition.

filed a motion for reconsideration, which the trial court never ruled on, and either concomitantly or shortly thereafter, he ahead and filed a successive -THE COURT: It's pretty clear what happened here. The
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judge got another motion and he thought that was what he was ruling on. No one ever pointed out to Judge -- actually, was
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it Judge O'Toole back then or Judge Wilkinson? MS. NATALE: THE COURT: I think it was Judge Wilkinson. Judge Wilkinson. It's obvious that he can

reconstruct that he overlooked the motion for reconsideration the second time because he had a substantive motion. pretty easy to figure out what happened. It's
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And no one ever told

him, least of all, Mr. Simmons, that there was something there waiting to be ruled on. And instead he appealed from the

second one rather than asking the judge to rule on the first one. And we found on this out five years later. Now, Judge Wilkinson has since ruled pursuant to the -- my stay order and the mandate of the Court of Appeals he's ruled on that. He denied it. He denied the motion for
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reconsideration after having previously denied the petition on the merits. And obviously, he looked at the file. I don't think he denied the petition on
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MS. NATALE:

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the merits, Your Honor. THE COURT:

I think he --

He said that there was a failure to file

the later -- I forget what you call it under the state procedure. What do you call the later detail, the later The initial petition is just the form you
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documented order?

check some boxes, right? MS. NATALE: THE COURT: MS. NATALE: petition. THE COURT: MS. NATALE: Right. I think there was a reason he moved to That's the notice. Then you have to file a later brief? Then you file a petition, an actual
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reconsider, and it was a pretty valid reason. THE COURT: That's what I want to talk about. Because
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I have tried to find everything there is.

And the only thing

that I found was his motion that said, Judge, you dismissed me because you said I didn't file the later papers, but I did. Under the mailbox rule, he filed it. And when Judge Wilkinson

recently denied the motion for reconsideration, seems to me, obviously, that he went back and looked at this and he looked at the merits. But whatever you think, he ruled summarily.
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Now, I'm coming bag back to what the Court of Appeals directed me to do. They directed me to allow -- to grant

relief to, in effect, require the superior court to rule on his petition for reconsideration. And looking at his original
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petition, which was identical to the first one, was it not? MS. NATALE: THE COURT: MS. NATALE: THE COURT: MS. NATALE: THE COURT: Yes. You mean --

State court petition. His second PCR -In the state court. -- was identical to the first one. Right. But looking at the merits of it,
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the only thing -- well, Ms. Natale, he's filed his petition for review of the recent denial by Judge Wilkinson. MS. NATALE: THE COURT: Yes. What issues has he argued? If they are
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like the petition, he's arguing ineffective assistance of counsel. MS. NATALE: THE COURT: MS. NATALE: THE COURT: MS. NATALE: THE COURT: Right. But shall I read the -14:32:12

Do you have a copy you can hand up to me? Yeah. Please do. May I approach? Yes. It's

Well, Ms. Natale, you can come retrieve this.

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all styled as ineffective assistance of counsel, but some of them have numerous subparts that who knows whether it goes beyond that. Now, Mr. Nielsen, in the original petition for review or post-conviction relief in the state court, state Court of
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Appeals essentially ruled it untimely without exceptions to excuse it, correct? MR. NIELSEN: THE COURT: Yes. And in this court, when I adopted the
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magistrate judge's report and recommendation, he found this petition to be procedurally barred for essentially the same reasons, but he alternatively addressed the merits at which I adopted, correct? MR. NIELSEN: THE COURT: Yes, Your Honor. So if one were just looking at adequate

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exhaustion of state remedies, the conclusion that his second state court petition was untimely and, therefore, he had not adequately exhausted the state remedies for federal habeas purposes, in theory could be cured with the resurrection now of his first state court petition. MS. NATALE: THE COURT: MS. NATALE: MR. NIELSEN: THE COURT: questions. Yes. I'm asking Mr. Nielsen. I'm sorry. Yes, Your Honor. Yes, Your Honor.
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Correct?

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And that leads to a couple other

The magistrate judge and I both concluded

alternatively that he hadn't made a case for ineffective assistance of counsel. MS. NATALE: THE COURT: Correct, Ms. Natale? Yes. That's what you both found.
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So the most literal reading one might give

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to the memorandum decision to the Court of Appeals was that Mr. Simmons had a right to have the superior court judge rule on the motion for reconsideration from the first post conviction relief case no matter how remote you might think the chances are that it would be granted. MR. NIELSEN: decision, Your Honor. THE COURT: That procedural due process defect in not Whether that
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Right?

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That's how I read the memorandum

having a ruling on that has now been cured.

ruling was right or wrong is not a matter of substantive of procedural due process. You have a procedural due process And if it

right to get a ruling, not to get a correct ruling. was wrong, it can be fixed on appeal.

Well, I call it appeal,

but it's really the petition for review. So then that leaves me to the last two questions. Number one, does the mandate of the Court of Appeals require me, or even if it doesn't, would it be wise of me to keep this habeas alive for however long it takes the state Court of Appeals to decide the merits of the petition for review so he can come back here challenging that? question. That's the first
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That breaks into a couple of parts. And if either part of the answer to that question is

that we should not take action that prevents him of having one opportunity for the federal court to consider his federal claims on habeas, Ms. Natale, haven't I already done that?
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MS. NATALE:

Well, not exactly, Your Honor.

I think

Mr. Nielsen and I read the Court of Appeals decision slightly differently. The Ninth ordered the stay pending resolution of the outstanding motion for reconsideration in state court, Page 2 and 3, noting that the due process clause grants the aggrieved party the opportunity to present his case and have its merits fairly judged. That's on Page 4.
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And it remanded with instructions for the district court to stay in order to give the state court an opportunity to correct its constitutional error. THE COURT: The constitutional error was not ruling.
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That was the error that they found. MS. NATALE: They didn't -- the Court didn't have an
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opportunity to decide whether they ruled properly or not, and although the bulk of Mr. Simmons' current petition for review does address his same six or however many ineffective assistance of counsel, in his opening two paragraphs he does point out that the denial of the motion for reconsideration kind of hints that it was wrongly decided. And the way we read it, the Ninth Circuit decision, is that he's entitled to have this stay in place until the state -- until he exhausts his state remedies. state court including -THE COURT: Give me the language. It doesn't say that That is the

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anywhere I can find. MS. NATALE: Well, pending resolution, and it's not

resolved until the Court of Appeals rules. THE COURT: said that. It just doesn't say that. You may wish it
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That might be a good idea.

But I'm looking for it

in the language of the Court of Appeals. MS. NATALE: On Page 4, the due process clause grants

the aggrieved party the opportunity to present its case and have its merits fairly judged. is not having it fairly judged. THE COURT: MS. NATALE: A one-line denial of the motion And -14:41:08

We do it all the time. PCR procedures includes the ability to

file a petition for review, which he has, which is pending. And we ask that Your Honor keep the stay in place until the Court of Appeals rules on his petition for review. THE COURT: to you both. That goes back to the first question I put And if they
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Does the Court of Appeals say that?

do, of course we're going to do that.

But the way it reads to You
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me is it says hey, that judge never ruled on your motion. have a due process right to have your motion ruled on. district court is directed to grant that relief.

And the

I did that.

I ordered Judge Wilkinson to rule on the motion, and he has. It's hard for me to find any language here that goes beyond that in terms of what the Court of Appeals has directed this court to do.
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So that's what I'm looking for. MR. NIELSEN: THE COURT: MR. NIELSEN: May I be heard briefly, Your Honor? Please. I think any other conclusion than that
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just doesn't make sense because the Court of Appeals said you have correctly found the claims procedurally defaulted. apologize. I forgot my other glasses. I do

That you correctly made

the finding of default.

And it also notes that you

alternatively ruled on the merits. So it doesn't seem to me there's anything -- to the extent that the claims in his first petition are the same claims that you have ruled on, it's moot. THE COURT: Well, are they? Because I haven't come But my recollection is
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back and compared it, word for word.

that his first state court PCR, his second state court PCR, his habeas case here raised the same issues. MR. NIELSEN: Isn't that correct? So you have

That's my understanding.

already found the procedurally defaulted and you have ruled on the merits of it. To the extent that the issues in his first
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PCR are different, I don't see how they are possibly before this court, because they are not in his habeas petition. MS. NATALE: not before the Court. Exactly. The issues in his first PCR are

What is before the Court is the Ninth

Circuit ordering this court to stay proceedings until he is granted all of the due process he's entitled to.
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THE COURT:

It doesn't say that.

It says he was That's all it

denied due process in not getting a ruling. says.

And if they wanted us -- well, of course there's

difficulty here, because neither the magistrate judge nor I thought this issue was being raised so we didn't rule on it. So that disadvantaged the Court of Appeals as well, because we didn't rule on this because we didn't think it was here. ruled on it without the benefit of a record having been developed by the trial judge. So that's where we're at. Puts
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They

them at a disadvantage as well. Well, I'm going to come back to what I said a minute ago. If -- well, let me strike that. Even if his procedural -- his claims were procedurally not exhausted, I could still rule on the -- could have ruled on the merits, correct, Ms. Natale? requirement. It's not a jurisdictional

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Is it not correct that the federal habeas corp

can reject the merits, even if there is doubt about whether they were exhausted? MS. NATALE: THE COURT: I think so. That's my recollection. But in any event,
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we did reject the merits alternatively.

The magistrate judge's

report and recommendation is very clear in noting this difficulty of the two petitions, the overlooked motion for reconsideration on the first one. before this court. Only the second one is
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He recommended, and I ruled, that that be

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found procedurally -- or not exhausted.

But alternatively he

recommended, and I ruled, that you lose on the merits anyway. And that's what we do with some frequency, especially in habeas cases, almost all of which are without counsel. We make
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alternate rulings with some regularity where we're able to do so. And isn't that exactly what we did in this case? We ruled

that your Sixth Amendment claims are not shown to be correct in any event. So having made that ruling, what is the purpose of retaining this case for what could be years while it goes through state appellate proceedings to come back to present to this court the exact same merits issues that were attempted the last time that were found to be not exhausted but were alternatively rejected on the merits. that, Ms. Natale? MS. NATALE: Because he has a due process right to What is the point of
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have -- to exhaust his state court remedies, it's possible. I'm not saying it's likely, but it's possible the state court may read it differently. THE COURT: MS. NATALE: THE COURT: MS. NATALE: THE COURT: wins there? Read what differently? His issues. May agree with him? It's possible. Then why would he be coming here if he If the state court -- the
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That's the whole point.

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state court could say, we looked at what Judge Wake said, and we disagree, in which event he'll get a new trial and I will never see this case again. MS. NATALE: Except that the issue is whether the stay
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should continue so that the Court of Appeals can address the issue on the motion for reconsideration. per PCR is really not before this court. THE COURT: I know. But Ms. Natale, what was before The merits of his pro

this court the last time, well, the first time, the only time in this court, was the substantive issue that he tried to raise both times and I, in the alternative, found them substantively unmeritorious. And so I'm trying to figure out whether -- I
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guess you are telling me that the Court of Appeals is requiring me, although they didn't say it with any clarity, to keep this case on a respirator, so that when the state appellate courts are done, it can come back and I can say, again, I already told you the answer to that question. claim. I ruled before. You have no Sixth Amendment
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It's the same that you are telling me

the Court of Appeals is requiring me to do. MS. NATALE: I think the Court of Appeals is just
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saying that Mr. Simmons is entitled to all the process he's due, which includes having the Court of Appeals rule on his petition for review. THE COURT: Well, they didn't say that. They said
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they are entitled to have the motion ruled on.

They didn't

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say -- now, state law gives him a right to file a petition and, of course, state law entitles him to that. In general, there That's

is no federal due process right to appellate review. well settled constitutional law.

States may provide that
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remedy, and once they provide it they cannot give it to some people and not to others in violation of equal protection of the law. But there's no right to appeal in general under

federal constitutional law. So I'm just talking this through with you all, because, Ms. Natale, I could see perfectly -- I'm trying to reconstruct what the Court of Appeals was thinking here. And
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it seems to make perfect sense for them to have said, look, it's true that the second petition was barred because it's not exhausted. And its alternatively true that if it weren't
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barred because unexhausted, it would be unmeritorious because there's just no showing there of any prejudice that would amount to an ineffective assistance of counsel. But he still has the right to have that judge decide whether the petition for reconsideration on the first PCR is good or bad, a right to rule on it. So the determination that

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the due process entitled him to a ruling on the first petition doesn't seem in any way to undercut, invalidate, erase, or make this court have to do over a second time. It's considered

study and conclusion that there was, in any event, no violation of Sixth Amendment right to ineffective assistance of counsel.
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So that's the second reading I take out of this rather brief memorandum of decision. What's wrong with that, Ms. Natale? MS. NATALE: of his petition. Your Honor, the issue is not the merits
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The issue is the due process to which he was

entitled when he filed his first petition, which was improperly dismissed. His motion for reconsideration at this court's

urging -- was ruled on at this court's urging and summarily denied with no rationale, and he still is entitled to a proper review of the motion for reconsideration, which that was improperly denied, which denied him due process. And we'd just
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ask the stay be continued until the Court of Appeals addressed that. THE COURT: Well, you know, Ms. Natale, there's
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nothing that requires a superior court judge to do anything more than say granted or denied. constitutional law. MS. NATALE: THE COURT: entitled to. MS. NATALE: He's also entitled because it was an That's correct. That's what he got and that's what he's Not on state law, not on

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improper or incorrect decision to have it looked at by the Court of Appeals. And that's where the case is right now, in

the Court of Appeals. THE COURT: And again, I find nothing in the mandate
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of the Ninth Circuit that says this court is required to do anything other than require the superior court to rule. Now, Mr. Nielsen. MR. NIELSEN: Certainly, Judge, habeas relief doesn't
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lie for errors at state law, assuming the state court messed up here. And quite frankly, it looks like they did. We all

overlooked this motion for reconsideration that came up kind of in the blue at the Ninth Circuit. But certainly due process

doesn't require you to reconsider the merits or the procedural nature of these same claims. Due process doesn't require you
14:53:07

to consider any claims that weren't raised in the original petition. THE COURT: That was one reason we were looking over And I understand
14:53:21

our shoulder and ruling on the merits anyway.

the Ninth Circuit to have ruled that Mr. Simmons is not merely entitled to have this court rule. Judge Wilkinson rule, too. MR. NIELSEN: And certainly, I, you know, I don't That's fundamental due process. But He was entitled to have

think you can fault him.

any error will be corrected, as you have already pointed out, in the state court system. THE COURT: Has nothing to do with this case.

14:53:42

Let's go back to the federal claims that Not just federal

are the sole basis for federal habeas relief. claims, but well-settled federal claims.

Is there anything in
14:54:05

Mr. Simmons' pending petition for review in the Arizona Court

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of Appeals that I have not ruled on in the merits of my previous ruling adopting the magistrate judge's report and recommendation? MR. NIELSEN: for review. THE COURT: briefed. All right. I think I want to have that Your Honor, I haven't seen the petition
14:54:21

So Mr. Nielsen, I think what I'm going to ask you to Because here's how I'm going to repeat
14:54:41

do is call for a further round of briefing. I'm seeing it. myself. I'm going to say it again.

The failure to exhaust from the second state court PCR is predicated on untimeliness. was timely. But, of course, the first PCR

That's why we looked over the shoulder and ruled

on the merits as well. He now has a pending petition for review in the Arizona Court of Appeals from a still living first PCR. It
14:55:06

seems to me that if the issues that -- federal issues that I alternatively ruled on here are the same issues that he raised below in the first state court PCR, that's all he can raise on appeal, if I have already ruled on the merits of those there's no point in waiting. We might as well take this off life
14:55:37

support if it's already dead. But if he raised something in his state court, first state court PCR that was a federal issue, that I did not alternatively reject on the merits in my prior ruling, then
14:56:09

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there might be some point that -- some federal issue benefit to Mr. Simmons in going through the state court appellate process, exhausting that, and wanting to come back to federal court. So that's what I'm going to direct you all to brief. We'll set a time table for that in a minute. If it turns out
14:56:35

that my alternative substantive ruling already takes care of that, it seems to me that I'm not going to attribute to the Ninth Circuit absent words to that effect that I just keep this case alive for another 6 to 18 to 24 months to turn around and say then what I'm saying right now, which is, I already alternatively rejected on the merits and the Ninth Circuit affirmed me on that, but they vindicated his right to have Judge Wilkinson rule on the same issues as well, which if, in fact, it turns out that there is some issue in his first state court PCR that's now viable on appeal that I did not alternatively rule on the merits and reject in this court, then it would take me back to what is the logically prior question of whether Court of Appeals mandate requires me to keep this case stayed, this federal habeas case stayed, while he pursues state court exhaustion. You have already briefed that, Mr. Nielsen. MR. NIELSEN: THE COURT: Yes. And I will tell you, just reading their
14:57:55 14:57:30 14:57:03

order, which is my duty, I don't see anything on the face of that order that requires me to do anything other than what's
14:58:07

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already been done given his ruling.

That's why I called for

further briefing on the question of what happens if there is a federal issue that's sort of, quote, left out. to file a second successive petition? Would he have

Would he have to seek And I think
14:58:28

permission in the Court of Appeals to get that?

you have acknowledged if there were such an issue, yes, he would have to get permission. So that would then lead to the Does the Court of Appeals,

question of what's wrong with that.

is there direction for this court to keep this case open for that possibility, or would their familiarity, they have retained -- the panel has retained this case so we're going to get the same panel from now to whenever this is done, does it make more sense to take their silence on this issue as meaning that if he comes up with something at the back end that he wants to present as a federal petition let him seek relief there. And although that's rarely done and rarely granted, If they had any doubt, I'm sure they would.
14:59:11 14:58:50

they might do it.

If I knew exactly what the Court of Appeals wanted, of course, it would be easier for all of us. So I'm thinking this through out loud with you both. I'd like to have -- actually, since I have you here I should address that last question, the contingent question. Mr. Nielsen, let's assume that when you go through this round of briefing I'm calling for, that there is some non -- some credible federal -- potential federal habeas issue
15:00:02 14:59:37

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that I haven't already ruled on and rejected.

Even if the

Court of Appeals mandate is not read to require me to keep his case alive, would it be a sensible exercise of discretion to do exactly that? MR. NIELSEN: I would argue, no, Judge, because any
15:00:28

claim like that is not before this court. THE COURT: It's not before this court. I would be

keeping this case alive in order to spare Mr. Simmons having to go to the Court of Appeals to get permission to try to bring it back here. MR. NIELSEN: THE COURT: Okay. I mean, that's exactly what's at stake.
15:00:46

Do I just keep this case alive, give him a free run at that if he wants to do and he has a shot at it, or should I just terminate this case and if he has something he comes up with make him go to the Court of Appeals to get permission, which is a better use of resources which is most appropriate for the convenience of litigants and state as well as Mr. Simmons. MR. NIELSEN: Well, Judge, I'd also point out that if
15:01:24 15:00:57

he raises some new claim in his petition for review, you can't raise a new claim properly in a petition for review. THE COURT: That's a good point. If I keep this

alive, I have left the door open for all kinds of stuff to be brought up. MR. NIELSEN: Yeah. That's not proper exhaustion.
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THE COURT:

Really, doesn't that come back to the

question of what did he pose in the first state court PCR? What did he pose in the federal habeas that I ruled on? you what. Tell

I think you have probably briefed that adequately, And I don't think I need further briefing on So I'm going to call for
15:01:54

both of you. that.

The question may go away.

further briefing on the issue I articulated. So let's figure out who should go first and what time you need to do it. Probably, Ms. Natale, maybe you should go You are the
15:02:17

first on the theory that you are the petitioner. plaintiff.

You should present what it is that's raised in the

first state court PCR that's a federal issue that's also raised in his Arizona Court of Appeals petition for review, that -for which he could have a legitimate desire to seek federal habeas review later. And show how it is not already disposed
15:02:50

of on the merits on the alternative ruling we did earlier. I think you should set the battlefield, and Mr. Nielsen has to do battle where you pick. you want to do that? So how much time do

I don't think this is going to take much. It's there, or it's not
15:03:17

This is going to be real simple. there. MS. NATALE:

Well, what it does mean, Your Honor, is

going back through the records with which I was thoroughly familiar in February, and re-reviewing. THE COURT: Let me help you out. It's a petition.
15:03:32

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That's it. to look at. was before. stuff.

That's all there is.

There's nothing more for you

And then you have got to look at what my ruling That's it. This is cut and dried mechanical

No new stuff, no stuff that you all know the standards
15:03:52

of adequate presentation of issues as a predicate for seeking federal habeas. There's no stretching. It's got to be fairly It's got to be

presented so there's no room for creativity.

straight there so the state court is given fair opportunity to address it. fairly lies. you think? MS. NATALE: THE COURT: MS. NATALE: THE COURT: MS. NATALE: Six weeks. Absolutely no way. Oh, boy. Well, tell me your schedule. Okay. I have got a couple of really
15:04:25

So there's no creativity.

You just take it as it So how long do
15:04:14

So that didn't take long at all.

How about three weeks?

substantive appeals that are due within the next month and as you know. weeks. Okay. I was away by choice, but I was away for five

And I -THE COURT: It's okay. I don't care about the past.
15:04:48

Just a matter of what you have got coming up into the near future. All right. How about the Friday before Thanksgiving? That's November -15:05:23

I don't want to ruin your Thanksgiving. what day is Thanksgiving?

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MS. NATALE:

22nd or something like that.

I am not

going to be able to do it by then, Your Honor. THE COURTROOM DEPUTY: THE COURT:

I'm sorry.

16th is the Friday before.

You know, Ms. Natale, I'm going to give This is simple. You just read it. I don't
15:05:41

you the time you need.

It's this issue, that issue, here's what we ruled on.

see this as being more than five to seven pages if you really stretch. You might be surprised. Mr. Nielsen, I want to be fair to both sides. there anything more to this? MR. NIELSEN: No, Your Honor. And whatever date you But yeah. I Is
15:06:00

set, I'd like 10 days just in case I get harried. think I could respond in a couple days, probably. THE COURT: Natale? MS. NATALE: calendar with me. I'm really sorry.

When are your appeal briefs due, Ms.
15:06:14

I don't have my

But there's one that's due on the 9th of

November, the 10th of November, and I think there's one due the 20 something. THE COURT: You know, Ms. Natale, this is about two Maybe four or five more hours to write
15:06:37

hours of work, at most. what you have read. speak the truth.

I mean, Mr. Nielsen, it's your job to

Am I underestimating this job? My understanding from what you are
15:06:56

MR. NIELSEN:

saying is just to compare the issues raised in the first PCR

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petition to your order. THE COURT: Well, and look at -- you can look at the

PCR petition filed here as well. MR. NIELSEN: THE COURT: MR. NIELSEN: THE COURT: MR. NIELSEN: THE COURT: The petition for review, Your Honor. No. The first state court PCR petition.
15:07:08

Yes. Federal habeas petition filed here. Yes. The ruling that magistrate judge did and That defines the issues.
15:07:17

my adoption of that ruling. MS. NATALE: said? THE COURT: they? MS. NATALE: THE COURT: No.

And nothing about what the Ninth Circuit

They didn't say anything about this, did

15:07:31

So, I mean, this is real simple.

Actually, you need to look at what he filed in the Arizona Court of Appeals. petition. And what he filed there has to track his

He can't think of something new in his appeal brief.
15:08:09

So it's got to be in both his state court PCR petition and in his appeal brief. what. MS. NATALE: Well, Your Honor, his current pending PFR And just tell me if there's -- tell you

does address the motion for reconsideration. THE COURT: I don't see how that matters. The only
15:08:32

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thing that matters for the analysis we're discussing now is whether the substantive federal rights that he might present in the future in a federal habeas have already been addressed and denied on the merits in this court's prior rulings. I'm asking you to brief. All right. taking six weeks. You know, Ms. Natale, I don't see this as This This That's all
15:08:58

I don't see this taking two weeks.

is -- you would have to stretch to fill a day to do this. is an old motion.

This motion has been sitting on my docket So I'm going to rule on
15:09:29

longer than any other motion I have. this.

How about the end of next week, Ms. Natale? MS. NATALE: THE COURT: End of next week? I'm sorry, Your Honor.

End of next week would be the 26th of Now, if you have some kind of a
15:09:46

October, Friday the 26th.

personal emergency or whatnot, you get sick or ill, somebody comes in with an emergency, you can file a motion for additional time. done with. So we'll set October 26 for petitioner's supplemental brief to address the following: Whether there's any question,
15:10:07

But I want to get this briefed and get it

federal question, raised in the first state court PCR and in the petition for review arising from that PCR which has not already alternatively been addressed and decided on the merits in this court. That's the issue I want you to address.
15:10:36

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Now, you need to give me the record, the portions of the state court record I don't have. You need to attach them

as exhibits so that we have a record for me and potentially for the Court of Appeals. And how much time do you want, Mr. Nielsen, to do your response? MR. NIELSEN: THE COURT: November 9th. MS. NATALE: Your Honor, there's no way I can have
15:11:05 15:10:51

10 days, unless the Court wants -That would be two weeks. That would be

this done by the 26th, I'm sorry, and still meet these other pressing deadlines, some of which have been continued a couple of times. THE COURT: MS. NATALE: Thanksgiving? THE COURT: All right. We'll do that. We'll set All right. Can we go back to the Friday before
15:11:21

November 16th for the petitioner's supplemental brief on that subject. We'll set December 7 for the state, I'm giving you We'll take
15:11:45

extra time because that's the Thanksgiving weekend. that whole week off. MR. NIELSEN: Honor. THE COURT: I want to get this ruled on.

I will try to get it in earlier, Your

So when
15:12:00

that's in, I will get something out, unless I'm in trial at

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that time.

I will certainly have something out before the

middle of December. All right. I have on my mind. I think that's covered the questions that You have answered my questions. Is there
15:12:11

anything either of you want to present?

I think we probably

covered everything, but I don't want to cut you off if there's anything on your mind. MS. NATALE: Well, Your Honor, in his sur-reply, Mr.

Nielsen did make much of unexhausted and defaulted and second successive petition and that sort of thing. And basically,
15:12:37

Your Honor, we just wanted the stay to prevent Mr. Simmons' petition from becoming mixed. THE COURT: Well, this supplemental briefing I have

asked for, depending on how that goes, may make that whole group of issues disappear. necessary. It may make them very real and
15:12:56

But if I find out they are really necessary, I I don't need to bother you

think you have both briefed that. further on that.

And as I have said, I don't really see that

the Court of Appeals mandate gives me any direction on that. So I think what I ought to do is figure out in the absence of a mandate, what's the most sensible thing to do in terms of the economy for both parties, judicial -- efficient judicial administration and avoidance of significant prejudice to any presentation of any credible federal issue. So I may resolve that in favor of Mr. Simmons if I
15:13:48 15:13:17

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think there is some credible federal issue.

I may go the other

way with the benefit of the briefing and say everything has already been decided, or if there's something theoretically that hasn't been decided, I may reach the conclusion that the chances of that ever mattering may be remote enough that it would actually promote judicial efficiency and promote economy for the parties to leave that to the Court of Appeals to consider as a request for a second successive petition. If there's something that looks credible, I agree to just leave it here. But if it's just leaving the door open to
15:14:31 15:14:10

come up with all kinds of stuff that haven't been presented to burden the state, it might be more efficient to just allow that to go to the Court of Appeals on a petition for second successive petition. I'm just thinking out loud. I don't have any answers.
15:14:46

I need to get the issues in context a lot more concretely, and only that will determine what I have to decide. Mr. Nielsen? MR. NIELSEN: THE COURT: MR. NIELSEN: Nothing further. THE COURT: recess. (Proceeding concluded at 3:15 p.m.) All right. Thank you. We'll be in May I have 10 seconds with counsel? Yes. Sorry for the delay, Your Honor.
15:15:01

All right.

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C E R T I F I C A T E

I, LAURIE A. ADAMS, do hereby certify that I am duly appointed and qualified to act as Official Court Reporter for the United States District Court for the District of Arizona. I FURTHER CERTIFY that the foregoing pages constitute a full, true, and accurate transcript of all of that portion of the proceedings contained herein, had in the above-entitled cause on the date specified therein, and that said transcript was prepared under my direction and control. DATED at Phoenix, Arizona, this 31st day of January, 2008.

s/Laurie A. Adams _______________________________ Laurie A. Adams, RMR, CRR

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