Free Reply to Response to Motion - District Court of Arizona - Arizona

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Gail Gianasi Natale State Bar No. 010389 817 North Second Street Phoenix, AZ 85004 (602) 258-1778 FAX: (602) 258-1779

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 v. DORA SCHRIRO, et al., Respondents. CURTIS GRAYLIN SIMMONS, Petitioner, D.C. CV-03-02172-PHX-NVW

REPLY TO STATE'S RESPONSE TO SIMMONS'S MOTION TO CONTINUE STAY

COMES NOW Petitioner CURTIS GRAYLIN SIMMONS, by and through counsel undersigned, and hereby replies to the State's Response to his Motion to Continue Stay. By way of responding to Simmons's request that this Court continue in effect the stay it previously imposed, the State contends that Simmons has received all the process due him from the Arizona courts with respect to his timely filed first petition for postconviction relief and hence there is no reason for the stay this Court previously imposed to continue in effect. It therefore has asked this Court to lift the

stay and dismiss Simmons's pending § 2254 petition. However, the State has misapprehended the reason for the Ninth Circuit's remand in this case, the process due

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Simmons from the Arizona courts, and the purpose of the stay this Court imposed. Accordingly, Simmons renews

his request that this Court continue the stay in these proceedings until the Arizona Court of Appeals has resolved any petition for review of the denial of his petition for post-conviction relief. Furthermore,

Simmons asks this Court to deny the State's request that it dismiss his § 2254 petition. In its memorandum disposition of Simmons's appeal from this Court's prior judgment denying his § 2254 petition, the Ninth Circuit ruled that the petition raised a "viable due process claim based on the state trial court's failure to rule on the motion for reconsideration." Simmons v. Schriro, No. 04-17153, This motion

mem. dispo. at 4 (9th Cir. Jun. 30, 2006).

for reconsideration challenged the denial of Simmons's first, timely-filed petition for post-conviction relief. The motion also served as a prelude to appellate review of that denial. See Ariz. R. Crim. P. 32.9(c). Because

the "failure to rule on Simmons' motion for reconsideration was a denial of his due process rights under the Fourteenth Amendment," the Ninth Circuit remanded the case and ordered this Court to impose a stay so that the state courts could have an "opportunity to correct [their] constitutional error." Id.

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The process due Simmons in order to correct this constitutional error is not, as the State implicitly argues, simply a ruling on the outstanding motion for reconsideration of the denial of Simmons's first, timely filed petition for post-conviction relief. Rather, the process due Simmons is an opportunity to avail himself of one complete round of Arizona's established system of appellate review. v. Boerckel, 526 U.S. 838, 845 (1999). See O'Sullivan A ruling on

Simmons's outstanding motion for reconsideration is merely the necessary first step in that process. In

order to receive all of the process due him, Simmons must have an opportunity to present the claims he raised in his timely-filed petition for post-conviction relief to the Arizona Court of Appeals. See Swoopes v.

Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999); State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (1989). The State's

constricted view of the process due Simmons frustrates the purpose for which the Ninth Circuit remanded this case--to allow Simmons to properly exhaust his claims, thereby making them ripe for federal-court review. Thus, this Court should continue the stay in effect until the state appeals process has run its course. The stay this Court imposed effectuates Simmons's due process right to an opportunity to present his constitutional claims to the Arizona Court of
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Appeals. (2005).

See Rhines v. Weber, 544 U.S. 269, 275-76 The stay also serves another equally important

interest--it preserves Simmons's constitutional right to review of the legality of his detention by means of a writ of habeas corpus. 2. See U.S. Const. art. I, § 9, cl.

The stay allows Simmons to exhaust the claims he

initially did not exhaust through no fault of his own. The state courts' arbitrary, premature termination of Simmons's post-conviction proceedings was the cause of Simmons's failure to exhaust his claims, rather than Simmons's failure to avail himself of that avenue of review. The stay this Court imposed equitably excuses See Rhines, 544 U.S. at 277.

this failure.

The stay also preserves Simmons's right to merits review in habeas. If this Court lifts the stay

and dismisses Simmons's § 2254 petition, any subsequent petition Simmons may file once the Arizona Court of Appeals has disposed of his petition for review will be subject to AEDPA's bar on second or successive habeas petitions. See 28 U.S.C. § 2244(b). Just as the stay-

and-abeyance procedure equitably relieves diligent habeas petitioners from the harshness of AEDPA's statute of limitations, see Rhines, 544 U.S. at 277, so too in this case should it equitably relieve Simmons from the harshness of the bar on second-or-successive petitions.

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For these reasons, the State's expectation that Simmons show "that his due process rights will likely be further violated through a subsequent refusal by [the Arizona Court of Appeals] to rule on his petition for review" is a non sequitur. The stay this Court imposed

has already equitably relieved the due process violation caused by the failure to promptly rule on Simmons's outstanding motion for reconsideration. It also serves

as a prophylactic against future due process violations caused by any delay in the Arizona Court of Appeals, whether that delay impacts Simmons's ability to exhaust constitutional claims already presented in federal habeas proceedings or his ability to avoid the statutory bar on second or successive habeas petitions. Because

the State's remaining arguments run contrary to the purpose of the Ninth Circuit's remand, this Court should continue in effect the stay it already imposed and decline the State's invitation to dismiss Simmons's habeas petition.
RESPECTFULLY SUBMITTED this 23rd day of July, 2007.

s/Gail Gianasi Natale GAIL GIANASI NATALE Attorney for Petitioner

I hereby certify that on July 23, 2007 24 I electronically transmitted the attached document to the Clerk's 25 Office using the CM/ECF registrants 26 and 5

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1 COPIES of the foregoing mailed this 23rd day of July, 2007, to: 2 The Honorable Neil V. Wake 3 United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 524 4 401 West Washington Street, SPC 52 Phoenix, AZ 85003 5 Curtis Graylin Simmons #35849 6 ASPC--Douglas, Gila Unit P.O. Box 5003 7 Douglas, AZ 85608 8 s/ Anita Jundy 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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