Free Motion to Supplement - 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 03-02172-PHX-NVW SUR-REPLY TO REPLY TO STATE'S RESPONSE TO SIMMONS' MOTION TO CONTINUE STAY

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

For the reasons given in the accompanying Memorandum of Points and

17 Authorities, Respondents oppose Petitioner Curtis Simmons' Motion to Continue 18 Stay, and request that the stay be lifted, and Simmons' case be dismissed. 19 20 21 22 23 24 25 26 27 28
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DATED this 12th day of September, 2007.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/ J. D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

1 2 I. 3 4 5 6 THE

MEMORANDUM OF POINTS AND AUTHORITIES
STAY IN THIS MATTER SHOULD BE LIFTED, AND SIMMONS' HABEAS PROCEEDINGS SHOULD BE DISMISSED.

In its Order of August 22, 2007 (Dkt. 64), the Court ordered Respondents to file a sur-reply to Simmons' Reply (Dkt. 59) to Respondents' Response (Dkt. 53)

7 to Simmons' Motion to Continue Stay (Dkt.52). 8 9 10 this case was to allow him to exhaust the issues raised in his first state petition for 11 post-conviction relief. (Dkt. 59, at 3.) However, as Respondents pointed out 12 previously in their Response, the clear language in the Ninth Circuit's 13 Memorandum Decision indicates that the sole purpose of the remand was to 14 15 guarantee Simmons' due process right to be heard, by giving the state PCR court 16 the opportunity to rule on his motion for reconsideration: 17 The district court did err in dismissing Simmons' § 2254 petition in its entirety without considering Simmons' due 18 process claim based on the state trial court's failure to rule on the motion for reconsideration of his first PCR petition. . . . 19 Thus, Simmons' § 2254 petition should not have been dismissed in its entirety because Simmons had a viable due 20 process claim based on the state trial court's failure to rule on the motion for reconsideration. Accordingly, we remand with 21 instructions to the district court to stay this portion of the § 2254 petition in order to give the state court an opportunity to 22 correct its constitutional error. 23 Memorandum Decision, June 30, 2006 (Dkt. 26, at 3, emphasis added, footnote 24 25 omitted). 26 27 28 Court of Appeals' clear language; he is also confusing legal concepts.
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In his Reply, Simmons contends that the reason the Ninth Circuit remanded

Moreover, in misconstruing this ruling, Simmons is not only ignoring the The

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1 AEDPA's exhaustion requirement is statutory in nature, and based upon the 2 equitable notion of comity; the right to be heard, upon which the Court of Appeals' 3 4 limited remand is grounded, is guaranteed by the Constitution, and based upon due 5 process. Compare Edwards v. Carpenter, 529 U.S. 446, 451­52 (2000) 6 ("principles of comity and federalism" underlie the exhaustion doctrine), with 7 8 Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982) (due process guarantees 9 an aggrieved party's right to present his case and have its merits fairly judged). 10 Accordingly, the Ninth Circuit's citations to Taylor v. Maddox, 366 F.3d 992, 11
th 12 1008­09 (9 Cir. 2004), and Logan, in support of its limited remand, do not relate

13 to the exhaustion requirement of 28 U.S.C. § 2254(b)(1)(A). The Ninth Circuit 14 cited Taylor only for the proposition that, although it could "remand [the matter] to 15 16 the district court to consider this due process claim, such a remand is not necessary 17 . . . [because] [t]here is no additional factual development required . . . ." (Dkt. 26, 18 at 4, emphasis added.) Similarly, the Ninth Circuit's citation to Logan clearly 19 20 illustrates that the sole purpose of the remand was to allow the state PCR court an 21 opportunity to rule on Simmons' motion for reconsideration: 22 [I]t is clear that the state court's failure to rule on Simmons' motion for reconsideration was a denial of his due process 23 rights under the Fourteenth Amendment. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982) ("As our 24 decisions have emphasized time and again, the Due Process Clause grants the aggrieved party the opportunity to present his 25 case and have its merits fairly judged.") 26 (Dkt. 26, at 4, emphasis added.) 27 28 Thus, because the state PCR court has now "correct[ed] its constitutional
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Case 2:03-cv-02172-NVW

1 error" by considering (and rejecting) Simmons' motion for reconsideration, there is 2 no reason to continue the stay in this Court. Simmons has made no showing that 3 4 his due process rights will likely be further violated through a subsequent refusal 5 by the Arizona Court of Appeals to rule on his petition for review from the denial 6 of his motion for consideration. 7 Additionally, the stay of these habeas proceedings should be discontinued, 8 9 because this Court has already considered, and rejected, Simmons' Sixth 10 Amendment claims1 on their merits. As the Ninth Circuit correctly noted, this 11 12 Court "assessed the relative merits of Simmons' claims" in connection with its 13 analysis of whether "cause and prejudice" excused the procedural default of these 14 claims. (See Dkt. 26, at 3.) The Court did so, by correctly equating "prejudice," 15
2 16 under the "cause and prejudice" doctrine, with the prejudice prong of Strickland:

17 18 19 20

[S]immons argues that the Court should consider his ineffective assistance of counsel claims because he can demonstrate cause for the procedural default and prejudice as a result. (Objs. at 3.)3 The Court does not need to review the R & R's determination that Simmons demonstrated cause for the default, see R & R at 13,4 because Simmons is unable to demonstrate prejudice.
1

21 ________________________ 22 23 24 25 26 27 28 In its Order, the Court also denied Simmons' Fourth Amendment claims on their merits, citing Stone v. Powell, 428 U.S. 465, 494, Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996), and other legal authority, because "Simmons received a full and fair opportunity to litigate [these] claims in state court." (Dkt. 16, at 4­5.) Simmons did not appeal the denial of these Fourth Amendment claims to the Ninth Circuit. 2 In order to establish a violation of the Sixth Amendment right to effective assistance of counsel, a defendant must prove: (1) counsel's performance was deficient; and (2) that counsel's deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). 3 See Petitioner's Objections to Report and Recommendations (Dkt. 12). 4 See Report and Recommendations (Dkt. 11).
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To demonstrate prejudice, Simmons must show that his attorney's errors worked to his actual and substantial disadvantage and infected his entire trial with constitutional error. See White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989). To prove that his trial counsel was constitutionally ineffective, Simmons must establish not only that counsel's performance was deficient, but that the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish deficient performance, Simmons must overcome a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance, see id. at 689, to show that "counsel's representation fell below an objective standard of reasonableness." See id. at 687­88. To establish prejudice to the defense, Simmons must show "a reasonable probability that, but for counsel's unprofessional error, the result of the proceeding would have been different." Id. at 694. (Dkt. 16, emphasis added, citation omitted.) The Court subsequently found that

12 Simmons failed to demonstrate Strickland prejudice with respect to any of his 13 14 15 same claims in his first PCR proceedings, there is no reason to continue the stay of remaining claims. (Id. at 6­8.) Thus, to the extent that Simmons has raised these

16 his habeas proceedings, because the Court has already rejected the claims on their 17 18 19 20 21 22 case.7 If the claims Simmons raised in his first PCR proceedings are different than
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merits,5 state exhaustion notwithstanding,6 and that ruling is now the law of the

Simmons' argument that continuing the stay "also preserves Simmons' right to 23 merits review in habeas," Dkt. 59, at 4, ignores the fact that this Court has already reviewed and denied his claims on their merits. 24 6 A court may dismiss a habeas petition on its merits, notwithstanding the failure of the petitioner to exhaust his claims in state court. 28 U.S.C. § 2254(b)(2). 25 7 Under the "law of the case" doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in 26 the same case. Richardson v. United States, 841 F.2d 993, 996 (9th Cir. 1988). This doctrine is based upon the concern that litigation must eventually come to an end. 27 Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002); Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc). 28
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1 the claims raised in his habeas petition, once again there is no reason to continue 2 the stay, because those different claims are not properly before this Court. See 3 4 Rule 2, Rules Governing § 2254 Cases (all grounds for relief must be "specified" 5 in the petition). 6 Finally, Simmons' reliance upon Rhines v. Weber, 544 U.S. 269 (2005), to 7 8 support his argument that the stay should be continued, is misplaced. In Rhines, 9 although approving the stay-and-abeyance procedure, "in limited circumstances," 10 with regard to mixed habeas petitions containing both exhausted and unexhausted 11 12 claims, the Supreme Court went on to state: 13 14 15 16 17 18 Because granting a stay effectively excuses a petitioner's failure to present his claims first to the state courts, stay and abeyance is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust his claims first in state court. Moreover, even if a petitioner had good cause for that failure, the district court would abuse its discretion if it were to grant him a stay when his unexhausted claims are plainly meritless. Cf. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State").

19 Rhines, 544 U.S. at 277 (emphasis added). Thus, because this Court alternatively 20 denied Simmons' Sixth Amendment claims on their merits, it would be an abuse of 21 22 discretion to continue the stay in this matter. Rhines, id. 23 24 25 procedurally precluded, but has also denied them on their merits, and because the 26 Arizona PCR court has finally considered (and denied) Simmons' motion for 27 reconsideration, satisfying the purpose of the limited remand of this matter, the 28
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Because this Court has not only found Simmons' Sixth Amendment claims

1 Court should lift the stay of these proceedings, and dismiss Simmons' habeas 2 petition with prejudice. 3 RAMIFICATIONS FROM THE DISMISSAL OF SIMMONS' CASE. 4 II. 5 6 7 The Court has ordered Respondents to address "whether dismissal of the petition at this time will leave a later federal habeas petition a second successive

8 petition requiring leave of the Court of Appeals and, if so, whether Petitioner is at 9 serious risk that the Court of Appeals would deny leave to file it." (Dkt. 64.) 10 As discussed previously, because this Court has adjudicated the claims 11 12 raised in Simmons' habeas petition, and because the purpose of the limited remand 13 has been satisfied, the stay of Simmons' habeas proceedings should be lifted, and 14 his habeas petition should be dismissed with prejudice. Thus, with respect to the 15 16 Court's first concern, any subsequent habeas petition filed by Simmons must be 17 considered a successive petition, for purposes of 28 U.S.C. § 2244(b), even if the 18 Court's alternative merits denial of his Sixth Amendment claims is not taken into 19
th 20 consideration. See Henderson v. Lampert, 396 F.3d 1049, 1053 (9 Cir. 2005)

21 ("`[A] denial on grounds of procedural default constitutes a disposition on the 22 merits and thus renders a subsequent § 2254 petition or § 2255 motion `second or 23 24 successive' for purposes of the AEDPA.'") (quoting Carter v. United States, 150 25 26 27 an order from the Ninth Circuit authorizing this Court to consider any subsequently 28 filed successive petition. See 28 U.S.C. § 2244(b)(3).
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F.3d 202, 205­06 (2d Cir.1998) (per curiam)). Thus, Simmons will have to seek

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With regard to the Court's second concern, if Simmons raises a claim, in a successive habeas petition, which was previously presented in his first habeas

4 petition, then the Court of Appeals cannot authorize review of the claim: 5 6 7 8 9 Simmons cannot avoid the consequences of § 2244(b)(1) by arguing that, because A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 28 U.S.C. § 2244(b)(1). See also Gonzalez v. Crosby, 545 U.S. 524, 530 (2005).

10 the state PCR court had not yet ruled on his motion for consideration, his Sixth 11 12 13 14 15 16 There is no basis in our cases for supposing, as the Ninth Circuit did, that a petitioner with unexhausted claims who chooses the second of these options--who elects to proceed to adjudication of his exhausted claims--may later assert that a subsequent petition is not "second or successive" precisely because his new claims were unexhausted at the time he filed his first petition. Amendment claims were unexhausted at the time he filed his habeas petition,:

17 Burton v. Stewart, ___ U.S. ___, 127 S.Ct. 793, 797 (2007). 18 19 20 petition that was not presented during the present habeas proceedings, the Court of 21 Appeals can only authorize this Court to consider the claim if Simmons "makes a 22 prima facie showing" that: (1) the claim relies on a new rule of constitutional law 23 that is retroactive to cases on collateral review; or (2) the factual predicate of the 24 25 claim could not have been previously discovered through the exercise of due 26 diligence, and the facts underlying the claim would be sufficient to establish by 27 clear and convincing evidence that, but for the error, no reasonable factfinder 28
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To the extent that Simmons raises a new claim in a successive habeas

1 would have found the applicant guilty of the underlying offense. 28 U.S.C. 2 § 2244(b)(2); Gonzalez, id. The form which Simmons used as his habeas petition 3 4 warned him of the potential consequences of failing to raise all of his outstanding 5 claims in his petition: 6 You must raise all grounds for relief that relate to this conviction. Any grounds not raised in this petition will likely 7 be barred from being raised in any subsequent federal action. 8 (Dkt. 1, at 4.) 9 10 III. CONCLUSION. 11 12 13 procedurally precluded, but has also denied them on their merits, and because the 14 Arizona PCR court has finally considered (and denied) Simmons' motion for 15 reconsideration, satisfying the purpose of the limited remand of this matter, the 16 Court should lift the stay of these proceedings, and dismiss Simmons' habeas 17 18 petition with prejudice. 19 20 21 successive petition for purposes of 28 U.S.C. § 2244(b), and therefore Simmons 22 must first seek authorization from the Court of Appeals before this Court may 23 consider it. If a claim presented in any successive petition was presented in 24 Simmons' first petition, the claim must be dismissed; if the claim was not 25 26 presented previously, then it may only be considered Simmons satisfies one of the 27 28
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Because this Court has not only found Simmons' Sixth Amendment claims

Any subsequent habeas petition filed by Simmons must be considered a

two narrow exceptions found in § 2244(b)(2).

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DATED this 12th day of September, 2007.
RESPECTFULLY SUBMITTED, TERRY GODDARD ATTORNEY GENERAL

s/ J. D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

I hereby certify that on this 12th day of September, 2007, I electronically 11 transmitted 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 12 registrant: 13 GAIL GIANASI NATALE 817 NORTH SECOND STREET 14 PHOENIX, ARIZONA 85004 15 Attorney for Petitioner 10 16 s/ 17 J. D. NIELSEN 18 CRM00-1071 19 49786 20 21 22 23 24 25 26 27 28
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