Free Response to Motion - 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 G. SIMMONS,
Petitioner,

CIV 03­2172­PHX­NVW RESPONSE TO PETITIONER'S MOTION TO CONTINUE STAY

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

For the reasons given in the accompanying Memorandum of Points and Authorities, Respondents oppose Petitioner Curtis Simmons' Motion to Continue

19 Stay. Moreover, as discussed below, Respondents request that the stay be lifted, 20 and Simmons' case be dismissed. 21 22 23 24 25 26 27 28
Case 2:03-cv-02172-NVW
S/ J.D. NIELSEN ASSISTANT ATTORNEY GENERAL ATTORNEYS FOR RESPONDENTS

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

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MEMORANDUM OF POINTS AND AUTHORITIES Although Respondents initially indicated to Petitioner's counsel that they would not oppose continuing the stay of this matter until after the Arizona Court of

5 Appeals considers Simmons' petition for review from the trial court's denial of his 6 motion for reconsideration, Respondents' review of the record of this matter has 7 since led them to a contrary conclusion. 8 Simmons clearly has the right, pursuant to Ariz. R. Crim. P. 32.9(c), to seek 9 10 review of the trial court's denial of his motion for reconsideration. Furthermore, 11 Simmons clearly has an obligation, pursuant to 28 U.S.C. § 2254(b)(1)(A),1 12 13 O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1998), and Swoopes v. Sublett, 196 14 F.3d 1008, 1010 (9th Cir. 1999), to fairly present claims to the Arizona Court of 15 Appeals in order to preserve them for subsequent federal habeas corpus review. 16 17 However, contrary to Simmons' contention, the portion of this case still pending 18 before the Court has nothing to do with exhaustion. 19 In its Memorandum Decision, the Ninth Circuit affirmed this Court's finding 20 21 that Simmons' claims were procedurally defaulted: 22 23 24 25 The district court did not err in invoking the procedural default doctrine to preclude federal review of Simmons' Sixth Amendment claims raised in his second PCR petition. . . . Having concluded that Simmons' Sixth Amendment claims were procedurally defaulted, the district court properly considered whether the default could be excused and in doing so, assessed the relative merits of Simmons' claims as part of its Simmons does not contend that the alternative provisions of § 2254(B)(1)(b) are applicable to his case.
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prejudice analysis. The district court correctly concluded that Simmons had failed to show prejudice to excuse the procedural default.

3 Memorandum Decision, Dkt. 26, at 3. The Ninth Circuit remanded the matter, 4 however, based upon the state trial court's failure to rule on Simmons' motion for 5 6 reconsideration: 7 8 9 10 11 12 The district court did err in dismissing Simmons' § 2254 petition in its entirety without considering Simmons' due process claim based on the state trial court's failure to rule on the motion for reconsideration of his first PCR petition. . . . Thus, Simmons' § 2254 petition should not have been dismissed in its entirety because Simmons had a viable due process claim based on the state trial court's failure to rule on the motion for reconsideration. Accordingly, we remand with instructions to the district court to stay this portion of the § 2254 petition in order to give the state court an opportunity to correct its constitutional error.

13 Id. at 4 (emphasis added, footnote omitted). Thus, the only reason for the remand 14 and stay was to guarantee Simmons his due process right to be heard, by giving the 15 16 state trial court the opportunity to rule on his motion for reconsideration. 17 18 19 considering, and rejecting, Simmons' motion for reconsideration. Although, as 20 discussed previously, Simmons has a right to seek review of that denial in the 21 Arizona Court of Appeals, he has made no showing that his due process rights will 22 likely be further violated through a subsequent refusal by that court to rule on his 23 24 petition for review, should he decide to file one. 25 26 27 28
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The state trial court has now "correct[ed] its constitutional error" by

Thus, because there are no remaining issues in this matter, this Court's stay should be lifted, and Simmons' case should be dismissed.

1 I hereby certify that on this 12th day of July, 2007, I electronically transmitted the attached document to the Clerk's Office using the ECF System for filing and 2 transmittal of a Notice of Electronic Filing to the following ECF registrant: 3 GAIL GIANASI NATALE 817 North Second Street 4 Phoenix, Arizona 85004 5 6 Attorney for Petitioner

7 s/ J.D. NIELSEN 8 CRM 00-1071 22347 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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