Free Motion for Extension of Time - 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 COMES NOW Petitioner CURTIS GRAYLIN SIMMONS, by and through counsel undersigned, and respectfully moves this Court for an extension of not more than two weeks in which to address[] what action, if any, should be taken in this proceeding in light of the Superior Court's order of May 8, 2007, to comply with the mandate of the Court of Appeals. [doc. #47]. Reasons are explained more fully in the following Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 22nd day of June, 2007. v. DORA SCHRIRO, et al., Respondents. CURTIS GRAYLIN SIMMONS, Petitioner, D.C. CV-03-02172-PHX-NVW MOTION FOR ADDITIONAL TIME IN WHICH TO ADDRESS WHAT ACTION THIS COURT SHOULD TAKE (FIRST REQUEST)

s/Gail Gianasi Natale GAIL GIANASI NATALE Attorney for Petitioner

Case 2:03-cv-02172-NVW

Document 48

Filed 06/22/2007

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MEMORANDUM OF POINTS AND AUTHORITIES
Background This Court on June 4, 2007 reconsidered its earlier order reimposing the stay of proceedings in this Court pending Mr. Simmons' exhaustion of state remedies in pursuit of his 28 U.S.C. § 2254 habeas corpus claims; it ordered that Petitioner brief the matter no later than this date. However, Mr. Simmons

asks--and J.D. Nielsen who represents the state does not oppose-a two-week extension so that counsel may determine whether Mr. Simmons has filed anything pro se in the Maricopa County Superior Court and/or whether the state court has issued any additional rulings in his case. B. Recent Developments Mr. Simmons, who was released from the Arizona Department of Corrections (D.O.C.) last fall, has not communicated with the undersigned since early this year. He did

not respond to several letters sent to his last civilian address1 nor was the undersigned able to get in contact with him by telephone. About a month ago counsel learned that Mr. Simmons had been returned to D.O.C. on this case in March 2007. She since has

written to him several times at the address provided by D.O.C. As of this writing Mr. Simmons has not responded.

Mr. Simmons' sister, Rose Elam, telephoned the undersigned last month informing counsel that she had been collecting and saving his letters, but she had not forwarded them to her brother in D.O.C. 2

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Case 2:03-cv-02172-NVW

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Filed 06/22/2007

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C.

Exhaustion of State Remedies The superior court on May 8, 2007 denied Mr. Simmons'

April 2002 Motion for Reconsideration but that ruling did not end the process. Petitioner still has the opportunity to exhaust his

state remedies--which he must do before he can return to this Court, Swoopes v. Sublett, 196 F.3d 1008, 1011 (9th Cir. 1999). Under the Arizona Rules of Criminal Procedure Mr. Simmons' next step is to file a Petition for Review (PFR) to the state court of appeals, Rule 32.9(c). The Rules impose time

limits for such filings (and/or for requests for extensions of time), id. In order to determine whether Mr. Simmons has been pursuing exhaustion counsel must physically review the case file at the superior court clerk's office because information available on line is inadequate2. Because of other commitments--including attendance at this week's Arizona Public Defender Association (APDA) conference--the undersigned is not able to get to the clerk's office until next week. This request is made in the interest of justice and is not interposed for delay. RESPECTFULLY SUBMITTED this 22nd day of June, 2007.

s/Gail Gianasi Natale GAIL GIANASI NATALE Attorney for Petitioner
Counsel cannot call up and read actual filings or Minute Entries. 3
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1 I hereby certify that on June 22, 2007 I electronically transmitted 2 the attached document to the Clerk's Office using the CM/ECF registrants 3 and 4 COPIES of the foregoing mailed this 5 22nd day of June, 2007, to: 6 The Honorable Neil V. Wake United States District Court 7 Sandra Day O'Connor U.S. Courthouse, Suite 524 401 West Washington Street, SPC 52 8 Phoenix, AZ 85003 9 Curtis Graylin Simmons, #35849 ASPC - Florence, Central Unit 10 P.O. Box 8200 Florence, AZ 85282 11 s/ Anita Jundy 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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Case 2:03-cv-02172-NVW

Document 48

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