Free Response - District Court of Arizona - Arizona

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TERRY GODDARD ATTORNEY GENERAL (FIRM STATE BAR NO. 14000) J.D. NIELSEN ASSISTANT ATTORNEY GENERAL CAPITAL LITIGATION SECTION 1275 W. WASHINGTON PHOENIX, ARIZONA 85007B2997 TELEPHONE: (602) 542B4686 (STATE BAR NUMBER 007715) E-MAIL: [email protected] ATTORNEYS FOR RESPONDENTS

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
CURTIS GRAYLIN SIMMONS,
Petitioner,

CIV 03­2172­PHX­NVW SUPPLEMENTAL BRIEFING IN RESPONSE TO COURT'S ORDERS OF 10/16/07 AND 10/23/07

-vsDORA B. SCHRIRO, et al.,
Respondents.

Because, as demonstrated below, there are no issues raised in Petitioner Curtis Graylin Simmons' first post-conviction relief proceedings which have not

18 already been addressed and decided on their merits by this Court, Respondents 19 request that the Court lift the stay, and dismiss Simmons' habeas petition with 20 prejudice. DATED this 31st day of October, 2007. 21 22 23 24 25 26 27 28
Case 2:03-cv-02172-NVW Document 71 1 Filed 10/31/2007 Page 1 of 4

RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL
S/ J.D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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MEMORANDUM OF POINTS AND AUTHORITIES On October 16, 2007, the Court ordered supplemental pleading regarding

3 whether there are any remaining federal questions raised in Simmons' first state 4 court petition for post-conviction relief, and in Simmons' petition for review to the 5 Arizona Court of Appeals, which have not already been addressed and decided by 6 this Court. (Dkt. 69.) On October 23, 2007, the Court vacated its October 16, 7 2007, Order, but allowed for the filing of optional supplemental briefs by 8 November 2, 2007. (Dkt. 70.) 9 A comparison of Simmons' first petition for post-conviction relief, filed 10 October 25, 2001 (Copy attached as Exhibit A), his September 7, 2007, petition for 11 review to the Arizona Court of Appeals from the state court's denial of his motion 12 for rehearing regarding the dismissal of his first post-conviction relief proceedings 13 (Copy attached as Exhibit B), and his November 6, 2003, petition for writ of 14 habeas corpus (Dkt. 1, copy attached as Exhibit C), reveals that there are no 15 remaining issues to be decided by this Court. 16 In his first petition for post-conviction relief, Simmons raised a claim that 17 his counsel was ineffective because she failed to interview potential witness 18 Warren Satcher, and because she failed to asked the trial court for a continuance in 19 order to interview Satcher. (Exhibit A, at 3­4.) Simmons raised this same issue as 20 his first claim in his petition for review, and as his fourth claim in his habeas 21 petition. (Exhibit B, at 2; Exhibit C, at 00179­80). 22 In his second claim in his petition for post-conviction relief, Simmons 23 contended that counsel was ineffective because she refused to call him as a 24 witness. (Exhibit A, at 5.) Simmons raised this issue as the second claim in his 25 petition for review, and as his fifth claim in his habeas petition. (Exhibit B, at 5; 26 27 28
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Exhibit C at 00180). In his third claim in his PCR petition, Simmons argued that counsel was

1 ineffective because she failed to advise him that he could have testified at the 2 suppression hearing. (Exhibit A, at 5.) Simmons raised this issue as the third 3 claim in his petition for review, and as his sixth claim in his habeas petition. 4 (Exhibit B, at 5; Exhibit C, at 00180.) 5 In his forth claim in his PCR petition, Simmons contended that counsel was 6 ineffective because she failed to call Officer Miller as a witness. (Exhibit A, at 6­ 7 9.) Simmons raised this issue as the fourth claim in his petition for review, and as 8 the seventh claim in his habeas petition. (Exhibits B, at 6­9; C, at 00181­84.) 9 In his fifth claim in his PCR petition, Simmons argued that counsel was 10 ineffective because she used "a lesser included offense as a defense to the charge 11 of possession for sale." (Exhibit A, at 10­12.) Simmons raised this issue as the 12 fifth claim in his petition for review, and as the eighth claim in his habeas petition. 13 (Exhibits B, at 10­12; C, at 00185­87.) 14 In his sixth and final claim in his PCR petition, Simmons contended that 15 counsel was ineffective because she failed to challenge the use of two prior 16 offenses to enhance his sentence. (Exhibit A, at 13­17.) Simmons raised this issue 17 as the sixth and final claim in his petition for review, and as the ninth claim in his 18 habeas petition. (Exhibits B, at 13­17; C, at 00188­91.) 19 In summary, there are no issues raised in Simmons' first post-conviction 20 relief proceedings that were also not raised in his habeas petitionin fact, the 21 language used in setting out these claims in the three pleadings is virtually 22 identical. (Compare Exhibits A, at 5­13; B, at 5­13; C, at 00179­91.) Thus, 23 because there are no remaining PCR claims which have not already been addressed 24 and decided on their merits by this Court (see Dkt. 15)1, the Court should lift the 25
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Because Simmons did not object to the Magistrate Judge's recommendation that 27 Simmons' fourth habeas claim, alleging that his counsel was ineffective for failing to interview potential witness Warren Satcher, be denied on its merits, the Court 28 (continued ...)
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1 stay and dismiss Simmons' habeas proceedings with prejudice, for the reasons 2 previously given in Respondents' response and sur-reply to Simmons' motion to 3 continue the stay. (See Dkts. 53, 67.) 4 DATED this 31st day of October, 2007. 5 6 7 8 9 10 11
S/ J.D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

I hereby certify that on this 31st day of October, 2007, I electronically transmitted 12 the attached document to the Clerk's Office using the ECF System for filing and transmittal of a Notice of Electronic Filing to the following ECF registrant: 13 GAIL GIANASI NATALE 14 817 North Second Street Phoenix, Arizona 85004 15 16 Attorney for Petitioner 17 s/ 18 J.D. NIELSEN 19 CRM 00-1071 81339 20 21 22 23 did not specifically reference that claim in its Order dismissing Simmons' petition. 24 See Dkts. 11, at 14; 12; 15, at 3. A court need review de novo only those portions of a report and recommendation to which specific objections have been made. See 25 Fed. R. Civ. P. 72(b); 28 U.S.C. § 636(b); Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court adopted the Magistrate Judge's finding, rejecting the 26 claim on its merits, when it generally adopted the Magistrate Judge's Report and Recommendation. See Dkt. 15, at 8. See also 28 U.S.C. § 636(b) (court "may 27 accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."). 28
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