Free Motion to Stay - District Court of Arizona - Arizona

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GAIL GIANASI NATALE Arizona State Bar #010389 817 North Second Street Phoenix, AZ 85004 602-258-1778 Attorney for Petitioner

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 s/Gail Gianasi Natale GAIL GIANASI NATALE Attorney for Petitioner COMES NOW Petitioner CURTIS GRAYLIN SIMMONS, by and through counsel undersigned, responding to this Court's order of June 4, 2007 [doc. # 47]. Because Petitioner has not yet vs. DORA SCHRIRO, et al., Respondents. CURTIS GRAYLIN G. SIMMONS, Petitioner, PETITIONER'S MOTION TO CONTINUE STAY D.C. No. CV 03-2172-PHX-NVW

presented his constitutional claims to the Arizona Court of Appeals, he has not yet exhausted those claims. Consequently,

this Court should allow the stay it imposed on May 22, 2007 [doc. #44], to continue in effect until such time as Petitioner has presented his constitutional claims to the Arizona Court of Appeals. Reasons are explained more fully in the following Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 3rd day of July, 2007.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 2 MEMORANDUM OF POINTS AND AUTHORITIES This case is before the Court on remand from the Ninth Circuit Court of Appeals. In its memorandum disposition, the

Ninth Circuit ruled that Petitioner's § 2254 petition raised a due process claim against the Maricopa County Superior Court's failure to finally dispose of his first petition for postconviction relief (PCR). That failure prevented Petitioner from

exhausting the constitutional claims he raised in the § 2254 petition that is the subject of the instant proceedings because without such a final ruling he could not petition the Arizona Court of Appeals for review of any adverse decision of the superior court. see Ariz. R. Crim. P. 32.9(c).

The remedy the Ninth Circuit afforded Petitioner was an opportunity to avail himself of the stay-and-abeyance procedure of Rhines v. Weber, 544 U.S. 269 (2004), in order to exhaust his constitutional claims. On May 8, 2004, the Maricopa County Superior Court finally ruled on Petitioner's outstanding motion for reconsideration in his state PCR proceedings. Now that

Petitioner has obtained a final order from the state superior court, he may petition for review of that final order in the Arizona Court of Appeals---the final step in the exhaustion process, see O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1998); Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).

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Once the Arizona Court of Appeals rules on Petitioner's petition for review, the claims he raised in his § 2254 petition will be ripe for review in this forum. Consequently, this Court

should allow the stay it has imposed to continue in effect until such time as Petitioner has obtained a final disposition of his petition for review in the Arizona Court of Appeals. Continuing

to hold these proceedings in abeyance effectuates both the procedure sanctioned in Rhines and the mandate of the Court of Appeals in this case. Petitioner will, of course, comply with any order to inform this Court of the status of his state-court proceedings, and will return to federal court to continue litigating his § 2254 petition within a reasonable time after those proceedings have concluded, Rhines, 544 U.S. at 277-78. RESPECTFULLY SUBMITTED this 3rd day of July, 2007. s/Gail Gianasi Natale GAIL GIANASI NATALE Attorney for Petitioner I hereby certify that on July 3, 2007, I electronically transmitted the attached document to the Clerk's Office using CM/ECF.

21 COPIES of the foregoing mailed this 3rd day of July, 2007, to: 22 The Honorable Neil V. Wake 23 United States District Court Sandra Day O'Connor U.S. Courthouse,Suite 524 24 401 West Washington Street, SPC 52 Phoenix, AZ 85003 25 26 3

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1 Curtis Graylin Simmons, #35849 ASPC--Douglas, Gila Unit 2 P.O. Box 5003 Douglas, AZ 85608 3 s/Anita Jundy 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 4

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