Free Order on Motion to Stay - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 DORA B. SCHRIRO, et al., 13 Respondents. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-02172-NVW Document 72 Filed 11/16/2007 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

CURTIS GRAYLIN SIMMONS, Petitioner, vs.

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No. CV03-02172-PHX-NVW ORDER

Before the court is the Petitioner's Motion to Continue Stay (doc. # 52) and the parties' various briefs thereon (doc. ## 53, 59, 67, and 71) concerning whether the court should enter final judgment dismissing this habeas corpus petition, the mandate of the Court of Appeals having been complied with, or should stay this case until Petitioner pursues further appeals in the State courts and allow him, in effect, to seek future duplicative habeas corpus relief in this action. The court has held hearings concerning implementing the mandate of the Court of Appeals on August 31, 2006, and October 16, 2007. (Doc. ## 34 and 69.) The court concludes that the mandate and the remand of the Court of Appeals has been complied with. The court further concludes that further staying of this case and delaying entry of final judgment is not otherwise required or warranted. Therefore, final judgment will be entered denying the Petition.

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I.

BRIEF PROCEDURAL HISTORY. Petitioner Curtis Graylin Simmons was convicted in the Maricopa County Superior

Court in 2000 of possession of drugs and possession of marijuana. His Anders appeal to the Arizona Court of Appeals failed, and his petition for review to the Arizona Supreme Court was denied. Refusing further assistance of counsel, he filed a pro se first petition for postconviction relief in the Superior Court, which was denied on the mistaken belief that he had not file a required brief. He then filed a motion for reconsideration and a second but identical petition for post-conviction relief. The Superior Court judge denied the second petition as untimely but was apparently unaware of the motion for reconsideration in the first petition. Simmons then sought appellate review of the denial of the second petition, but did not request the Superior Court to rule on the overlooked motion for reconsideration in the first petition. After exhausting State court appellate review of the denial of his second petition, Simmons filed this petition for habeas corpus relief in this court concerning his second petition in the State court. The Magistrate Judge's Report and Recommendation (doc. # 11) noted the Superior Court's error in dismissing the first petition for post-conviction relief on the mistaken belief that Simmons had not filed the necessary brief. The habeas petition in this court argued a Fourth Amendment violation in failing to suppress evidence and ineffective assistance of counsel in several particulars. Upon recommendation of the Magistrate Judge, this court found the Fourth Amendment claim not cognizable in these federal habeas proceedings because Simmons had a full and fair opportunity to present that claim in the State courts­indeed, they were presented in three levels of the State courts and rejected. The Magistrate judge further recommended that Simmons had "cause" for his late and procedurally barred second State court petition because the Superior Court dismissed his first petition in error, having overlooked Simmons' timely brief. However, the Magistrate Judge further recommended that the Simmons had no "prejudice" from that error because, on the merits, there was no showing that any of the supposed instances of ineffective assistance of counsel would have affected the outcome of his trial. This court accepted the -2Case 2:03-cv-02172-NVW Document 72 Filed 11/16/2007 Page 2 of 5

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latter conclusion and found it unnecessary to consider the former conclusion. (Doc. # 15.) In substance this court considered and decided Simmons' ineffective assistance of counsel claims on the merits. The Court of Appeals affirmed this court's rulings that procedural default "preclude[d] federal review of Simmons' Sixth Amendment claims raised in his second PCR petition" and that "Simmons failed to show prejudice to excuse the procedural default." (Doc. # 26, p. 3.) However, the Court of Appeals reversed in part and remanded with direction "to stay this portion of the § 2254 petition in order to give the state court an opportunity to correct its constitutional error [in not ruling on the motion for reconsideration]." (Doc. # 26, p. 4.) The Magistrate Judge had not seen such a claim in the habeas petition, and Simmons did not object in this court to the Report and Recommendation's failure to address it. (Doc. # 12.) See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Thomas v. Arn, 474 U.S. 140, 149 (1985) ("[Section 636(b)(1)] does not . . . require any review at all . . . of any issue that is not the subject of an objection.") In compliance with the mandate, this court's order of September 7, 2007, stayed the remaining part of this case and directed Petitioner to "file a proper motion in the Superior Court within 21 days . . . requesting a ruling on his motion for reconsideration of the denial of his first PCR petition in that court." (Doc.# 35.) The Superior Court later denied the previously overlooked motion for reconsideration on May 8, 2007. (Doc. # 47.) Simmons has sought discretionary appellate review of that ruling. Simmons has moved this court to continue the stay of proceedings (doc. # 52), and this court called for and has received further briefs on whether, having received a ruling by the Superior Court, Simmons' procedural due process right recognized by the Court of Appeals has been satisfied and this proceeding on remand should be terminated. (Doc. ## 53, 59, 67, and 71.)

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II.

ANALYSIS The only remaining claim in Simmons' Petition, as construed by the Court of Appeals,

was vindicated when the Superior Court ruled on the overlooked motion for reconsideration in the first State court petition. The only violation of due process the Court of Appeals found was "the state trial court's failure to rule on the motion for reconsideration of his first PCR petition." (Doc. # 26, p. 4.) The mandate does not direct this court to grant any further relief, such as holding this case open until further State court appellate review is completed, so Simmons can seek to amend his petition here to urge further substantive federal court review of his first State court petition, which is identical to his second petition. The mandate of the Court of Appeals, by its plain terms, has been carried out fully. Nor is there other justification to delay entry of final judgment on remand terminating this case. Simmons urges that, upon future failure of his pending State court appellate review, he would like to amend his habeas petition in this case, thus achieving de facto second federal habeas review. This court has already found his Fourth Amendment claim not cognizable in federal habeas, and the Court of Appeals granted him no certificate of appealability on that issue. Similarly, this court found that, though he had cause for the procedural default in the untimeliness of his second State court petition, it was substantively unmeritorious since there was no ineffective assistance of counsel, which the Court of Appeals affirmed. Thus, Simmons already has had substantive federal habeas review of everything he might present in a later habeas petition arising out of his first State court petition. As Respondents note in detail (doc. # 71), every claim raised in Simmons' first State court petition, now on petition for review in the State appellate courts, already has been rejected by this court and either not appealed or rejected again on appeal. If Simmons should decide in the future to present a second successive habeas petition, necessarily on the same issues, it would be appropriate for him to first demonstrate to the Court of Appeals why he should be allowed to. He should not be allowed to burden the Respondents with duplicative proceedings merely by this court delaying entry of final judgment and allowing an amended -4Case 2:03-cv-02172-NVW Document 72 Filed 11/16/2007 Page 4 of 5

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petition in the future, without a showing to the satisfaction of the Court of Appeals that 28 U.S.C. § 2244(b)(3) requires for second successive petitions. IT IS THEREFORE ORDERED that Petitioner's Motion to Continue Stay (doc. # 52) is denied. IT IS FURTHER ORDERED that the Clerk enter judgment denying the Petition (doc. # 1). The Clerk shall terminate this action. DATED this 16th day of November 2007.

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