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 August 31, 2006 9:04 a.m.

BEFORE: THE HONORABLE NEIL V. WAKE UNITED STATES DISTRICT COURT JUDGE (Status Conference) APPEARANCES: For the Petitioner: Gail Gianasi Natale By: Gail Gianasi Natale, Esq. 817 N. Second Street Phoenix, AZ 85004 For the Respondents: 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 83

Filed 01/31/2008

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

Simmons versus Doris Schriro, et al., on for a status conference. I will have -- Mr. Simmons, why don't you announce Just state your name.
09:03:54

first, please.

Mr. Simmons, state your name, please. MR. SIMMONS: MS. NATALE: MR. NIELSEN: respondents. THE COURT: Mr. Simmons. I set this hearing because I wanted to talk with you all about the appropriate order to enter the Court of Appeals. I certainly get the feeling from the warden they want this to be moved quickly, and so I wanted to discuss with you what appropriate time is to set for the stay. And my thought was to
09:04:33

Curtis Graylin Simmons. Gail Natale representing Mr. Simmons. J.D. Nielsen representing the
09:04:16

Good morning, counsel, and good morning,

set a time by which the petitioner is to file a status report and, in any event, to file a status report after the superior court makes a ruling on this motion for reconsideration that's the subject of the Court of Appeals order. And I wanted to invite both counsel to offer any suggestions they might have as to what I might do in the terms of my remand order to facilitate the prompt resolution of this in the superior court.
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Ms. Natale, do you have any thoughts? MS. NATALE: THE COURT: MS. NATALE: Well, probably, Your Honor, you could -You can come up to the podium. Oh. Thank you.
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You could track the language of the Ninth Circuit decision and tell the superior court to act quickly on Mr. Simmons' motion, and I can provide the -THE COURT: They have to rule within 60 days anyway of

the request, or else they don't get their paycheck. MS. NATALE: Oh. Okay. One of the problems is who is
09:06:00

the judge to be assigned, but that's superior court's problem, not ours. THE COURT: comments? MR. NIELSEN: needs to make a filing. superior court, Gail? I thought maybe you filed a motion requesting a decision on the previous motion for rehearing, and I don't know what type of time period you need to do that. things up. Judge, I briefly have spoken with Gail, and I have asked her to put me on the mailing list. I think that will That might speed
09:06:39

All right.

Mr. Nielsen, do you have any

Well, Judge, I don't know how long Gail Are you going to file a motion in the

09:06:14

also speed things up and to have me handle the matter in state court rather than re-involving the county attorney on the
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matter.

Certainly I will file the a notice of appearance in

state court. But I don't know what -- I don't think we should give the state court a lot of time to sit on this, and I don't think they need a lot of time to sit on this. MS. NATALE: And I would think once Judge Wake issues
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an order to superior court, which I hope will include naming me as counsel. THE COURT: MS. NATALE: to file a motion. Well, we need to talk about that. Okay. Then it shouldn't take very long
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It would be, as far as I can tell, something

pretty much pro forma, pursuant to -THE COURT: MS. NATALE: THE COURT: go? It's really a one-sentence motion. Right. And Mr. Nielsen, how would this normally My
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Obviously, something needs to be filed over there.

thought is I'm going to write up a short order, mainly for the convenience of the superior court, a very, very short description of the nature of this remand order, the order of the Court of Appeals is pretty succinct and to the point. I will write something up. week. I won't get it done until next But
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I will get it out next week something, some piece of

paper that can trigger the bureaucracy over there. MS. NATALE: Yeah. It would require something more
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than just a motion from me.

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THE COURT: motion.

But my order doesn't really -- is not a

It's still up to the petitioner. MS. NATALE: THE COURT: Right. To seek -- to file something else that
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will trigger the 60-day or no paycheck rule. MS. NATALE: Yeah. That's why I thought, you know,

the Court could file an order and then Gail could rapidly follow that up with a motion, and then I will also file a notice of appearance as soon as I get a copy of her motion. THE COURT: Now, my thought was -- and I want to hear
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from you all -- my thought was to put in this order that I -to order a status report no later than 90 days from this order. That should be more than enough time for a motion to be filed and a ruling to be made 90 days or 10 days after this ruling, whichever comes first. Do either of you see any problem with me ordering that status report schedule? MR. NIELSEN: MS. NATALE: does. THE COURT: It's just calling for a report. And what I don't, Your Honor. Well, it depends on what superior court
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they do, they will determine what happens next.

But my thought

for the purpose for a status report is just to, A, facilitate it getting done; and B, have something on a calendar that people have to deal with. Hearing no objection on that, I
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think I will go that way. Ms. Natale, on your motion appointing counsel, we don't appoint lawyers to work in the state court. MS. NATALE: Well, except, Your Honor, it is a
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continuation of the 2254. THE COURT: remedy. No, it's an exhaustion of the state court

So I don't see that it's appropriate for this court to

appoint a lawyer on our budget to represent someone in the state court. my mind. motion. My review -- so I am -- let me tell you what's on
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That's one reason why I think I should not grant that There's two -- or one and-a-half further reasons. My

review of the record, which could be mistaken, is that Mr. Simmons declined to have counsel on his PCR and insisted on doing it himself. Is my memory on that wrong, Ms. Natale? No, your memory is correct, Your Honor.
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MS. NATALE:

After it appeared that his public defenders kind of messed things up, he did want to represent himself, but now he does want counsel. THE COURT: Well, he waived that right, and he and you So there's
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can renew a request before the superior court.

nothing in my ruling that in any way prejudices the superior court's authority or jurisdiction or discretion to appoint his counsel. But with him having expressly declined to have

counsel, I see that as an independent, not overlapping but independent reason for me not to appoint you as counsel
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through the federal court. But again, you can make that motion in the superior court. MS. NATALE: Well, Your Honor, perhaps part of the
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problem is that OCAC, the Office of Court Appointed Counsel, is very rigid and doesn't -- it's got a list. I have not been on

it for five or six years, and probably some stranger who is going to be as un satisfactory to Mr. Simmons as previous counsel would be appointed and would have to review the whole thing. Perhaps, Your Honor, in your order you might suggest that the Court, if such a request is filed, that the Court grant appointment. THE COURT: superior court. I'm not going to prejudge anything for the
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So, I mean, I think it's fine if you do apply But I'm not going to tell the superior

if you are eligible.

court judge how to rule. So I will, as I said, I'm going to put this in a written order. I will get it out next week. But I'm going to
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deny your motion, Docket Number 31, for the federal court to appoint you as counsel for Mr. Simmons in the state court proceedings. Now, what the Court of Appeals order says is that the superior court needs to rule on the motion for reconsideration. And Mr. Nielsen, what actually happened on that motion for

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reconsideration? MR. NIELSEN: just never ruled on it. successive PCR petition. It appears from the file that the Court And then Mr. Simmons filed a It's been hard to track from this
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file, because a number of the filings are identical but were filed at different times were meant to be different things. That was my understanding. That's basically what I learned

when I got to San Francisco for oral argument. THE COURT: Well, as I saw the record, he filed that
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the same day he filed the successive petition. MR. NIELSEN: THE COURT: MS. NATALE: Okay. I may be wrong on my memory on that. I'm sorry, Your Honor. I don't have the

record with me, but I think he did file the motion for reconsideration, didn't get anything, and I believe that the successive petition, which was hand copied and identical to the first one, was filed later. Mr. Simmons, do you recall? MR. SIMMONS: I filed the petition, motion for
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reconsideration and I got -- the Court sent out this message. Because I never filed one saying I don't file -THE COURT: Mr. Simmons, I'm sorry. We cannot

understand what you are saying. anything down.

The court reporter can't take

So I'd like to ask you to speak slowly and
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pronounce every word carefully.

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MR. SIMMONS:

The moment that I got the response from

the Court denying the -- dismissing my post conviction relief proceedings because I never -- they say I never sent a petition, okay. That's when I filed a motion, about, say,
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seven days afterwards, telling them that I did file a post relief petition and that they could call in Yuma at that time, when I was in Yuma, the property room and find out that I did send it out. Well, they didn't answer that motion. answered it. They never

But I got a, you know, I know they received it That was after --

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but they never answered it. THE COURT: I'm not sure now.

And I think I looked at this before, but

I thought it was just a one-paragraph motion

for reconsideration, without additional argument, is that correct? MR. SIMMONS: MS. NATALE: THE COURT: Yes. I'm sorry. Okay. I don't remember. I
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I'm not completely sure, either.

did look at it previously. All right. Mr. Nielsen. And then there's just one last question,
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This is purely idle curiosity on my part.

When you briefed this in the Court of Appeals, did you point out to them that the objections -- that the magistrate judge's report and recommendation said nothing about this issue and that the objections to the R & R made no objection to it
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either, thus, waiving any error on this ground? Title 28, United States Code Section 363(b). MR. NIELSEN:

That's under

I can't remember, Judge, if I For some reason, that
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specifically made the waiver argument.

motion for reconsideration was not in the file when I looked at the file, so I had no idea that he had filed that previously. THE COURT: No, I'm just wondering about -- see, the

magistrate judge didn't say anything about this in his report and recommendation. MR. NIELSEN: THE COURT: Uh-huh. And the objections that were filed in this
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court raised two points, both of which I addressed. MR. NIELSEN: THE COURT: Yes. But did not raise this issue, and I was
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just wondering if the Court of Appeals was aware that this issue was waived under Section 363(b) of Title 28 for not having been argued in the objections to the report and recommendation. MR. NIELSEN: It seems to me that I related to the But I

panel that, you know, this argument wasn't made prior. can't specifically recall at this time, Judge. THE COURT: It doesn't matter now.

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I'm sorry.

Do you recall, Ms. Natale? MS. NATALE: THE COURT: I don't think waiver was ever addressed. Well, it's a practice pointer for you to
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learn about, Mr. Nielsen. MR. NIELSEN: THE COURT: Yes. All right. Is there anything else that we

could address to facilitate moving this along? MS. NATALE: Your Honor, will, even though you are not
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appointing me to represent him, will there be some indication that I be copied on whatever happens? THE COURT: Well, you know, I'm not going to tell the You are
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superior court what to do with respect to counsel.

free to make an appearance without compensation if you wish. If you wish to be compensated -MS. NATALE: THE COURT: Your Honor, I wish I could afford to. But I am not -- it's not appropriate for And

me to tell the superior court how they should manage that. as I have said, I don't think it's appropriate for us to

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appoint counsel under our -- with our funds and resources for a proceeding in the state court. So now, Mr. Simmons -MR. SIMMONS: THE COURT: Yes. You understand that Ms. Natale's
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appointment to represent you really was in the Court of Appeals, and I want to thank her for coming here today for this hearing to assist me. But do you understand that unless Ms.

Natale reaches some private agreement with you, which she has no obligation to do, to continue to represent you without being
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paid, or she applies for and is appointed as counsel by the superior court, she's not your lawyer anymore for the proceedings in the state court. Do you understand that? MR. SIMMONS: huh? THE COURT: What that means is unless you reach some Yes. So nothing I can do about that,
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agreement with Ms. Natale or she agrees to file something with you, it is your responsibility to file the one -- however, one page or whatever it is you want to file motion with the superior court asking them to rule on this overlooked motion for reconsideration. And I am going to write this up in an
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order which I hope will help the superior court judge, whoever it is, see what this issue is and they need to deal with it. But I just want to be clear with you, Mr. Simmons, that it's your responsibility to see to it that you file a motion in the superior court asking them to rule on that overlooked motion for reconsideration. MR. SIMMONS: THE COURT: point. MS. NATALE: Your Honor, I am wondering logistically, How long do I have to do that? Well, I'm going to -- well, that's a good
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I will call Mark Kennedy as soon as I get back to the office. But probably, we need your order to the superior court before I can do anything.
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THE COURT: next week.

Yes.

And as I said, I will get that out I think

I will put something in that order.

perhaps, Mr. Simmons, I'm going to put a deadline for you to file that motion as probably just like I said, one sentence or one paragraph, please rule on this motion and give the judge the docket number and the date of it. should be enough, 21 days. MR. SIMMONS: THE COURT: Within 20 days from now? 20 days from the date that I send my order So you
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Just -- I think 20 days

out, which will be next week, not today or tomorrow. can count from about three weeks from next week.

So think of

it as about four weeks as the deadline for you to file your request for the superior court judge to rule on that overlooked motion for reconsideration. MR. SIMMONS: Well, my understanding was that the So
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Ninth Circuit told me they had to will rule on it anyway. that's not what he meant. THE COURT: Natale. MS. NATALE: I can't understand what he said, Ms.

Your Honor, may I address Mr. Simmons?

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Mr. Simmons, I will be in contact with you and let you know the status of whether I'm appointed to represent you. chances are, if I'm not, I could send you a draft motion or something like that. MR. SIMMONS: Okay.
09:21:33

And

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MS. NATALE: mail. MR. SIMMONS: THE COURT:

But I will be in contact with you by

All right.

Thanks.

Thanks a lot.

Let me say, Ms. Natale, I am not expecting
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anything from you, but I do appreciate your professionalism in this matter. MS. NATALE: THE COURT: Thank you. All right. I will put that in the order.

I will try to make that order comprehensive so that you all understand what the times are and so the superior court judge can pick it up and easily see what it is that he's supposed to do together with the Court of Appeals mandate. If there's nothing else, then, we will -MS. NATALE: THE COURT: MS. NATALE: Well -Yes. Go ahead.
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You will indicate -- I know when orders

come from this court or the Ninth Circuit we never know who else has been served, unlike superior court where they indicate everybody. But I would appreciate if I be -- if the Court know
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that I be copied as well as Mr. Nielsen. THE COURT: reminding me. I will ask the clerk. Yes. Thank you for

I will ask the clerk to direct that Ms. Natale

be served with the orders of this court that will issue, both the minute entry on this hearing and the further signed order that I will issue next week.
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All right. adjourned.

Again, if there's nothing else, we will be

Thank you. Thank you, Judge. Thank you Your, Honor.
09:22:56

MR. NIELSEN: MS. NATALE:

(Proceeding concluded at 9:22 a.m.)

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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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