Free Motion for Reconsideration - 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 COMES NOW Petitioner CURTIS GRAYLIN SIMMONS, by and 14 through counsel undersigned, and respectfully asks this Court to 15 reconsider its refusal to appoint counsel to represent him in 16 state court so that he may 17 state claims. 18 appointment of the undersigned in state court. 19 interests of justice so require. 20 A. 21 This Court has clear legal authority to continue the 22 appointment of CJA counsel to represent Mr. Simmons in state 23 court under 18 U.S.C. § 3006A(c): 24 25 26 A person for whom counsel is appointed shall be represented at every stage of the proceedings . . . including ancillary matters appropriate to the proceedings. Legal Authority for Appointment Additionally, the This Court does have legal authority to continue "fairly present" and exhaust his v. DORA SCHRIRO, et al., Respondents. CURTIS GRAYLIN SIMMONS, Petitioner, D.C. CV-03-02172-PHX-NVW MOTION FOR RECONSIDERATION RE: APPOINTMENT OF COUNSEL UNDER THE CRIMINAL JUSTICE ACT

Case 2:03-cv-02172-NVW

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Filed 05/24/2007

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(emphasis added). explains:

Furthermore, 18 U.S.C. § 3006A(a)(2)(B)

Whenever . . . the court determines that the interests of justice so require, representation may be provided [under the Criminal Justice Act] for any financially eligible person who . . . is seeking relief under section 2241, 2254, or 2255 of title 28. B. Interests of Justice This Court suggests that Petitioner should seek appointment of counsel in state court. to be an exercise in futility. However, that has proven

More than six months ago Mr.

Simmons moved the Maricopa County Superior Court for appointment of the undersigned (or, alternatively, to appoint contract counsel1) to represent Petitioner but the court ignored this request. Just as the superior court failed to rule on Mr. Simmons Motion for Reconsideration in 2005, and just as it failed to rule on that motion until earlier this month when prodded by the District Court, it is just as likely that the court will not address a refiled request for appointment of counsel. In the

unlikely event such a motion would be granted, the timing will preclude Mr. Simmons from filing a timely Petition for Review under Rule 32.9, Arizona Rules of Criminal Procedure. It is clear from the nature of Mr. Simmons claims that he cannot handle the state court matters pro se. He must have

Even if the superior court had appointed contract counsel the contract lawyer would have to start at Square One. He or she will have no familiarity with the case, its extensive record and its circuitous history. 2

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assistance of counsel in order to exhaust his state remedies and to "fairly present" his federal claims to the state court, Baldwin v. Reese, 541 U.S. 27, 32 (2004)and see, Castillo v. McFadden, 399 F.3d 993, 1001 (9th Cir. 2005). The Ninth Circuit believed that Mr. Simmons required assistance of counsel on these matters because it appointed counsel to represent him on appeal of this Court's denial of his 28 U.S.C. § 2254 habeas corpus claims. It was apparent to the

court of appeals that Mr. Simmons' claims were too complicated for him to prosecute pro se. This Court has a responsibility to

assure that Mr. Simmons is represented adequately and, therefore, is asked to reconsider and to appoint the undersigned to assist him in exhausting his state claims so that he may, if necessary, return to Federal Court. RESPECTFULLY SUBMITTED this 24th day of May, 2007.

s/Gail Gianasi Natale GAIL GIANASI NATALE Former Attorney for Petitioner

I hereby certify that on May 24, 2007 19 I electronically transmitted the attached document to the Clerk's 20 Office using the CM/ECF registrants 21 and 22 COPIES of the foregoing mailed/emailed this 24th day of May, 2007, to: 23 James D. Nielsen, Assistant Attorney General 24 Attorney General's Office [email protected] 25 26

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Curtis Graylin Simmons 5822 South 17th St. Phoenix AZ 85040 s/Anita Jundy

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