Free Motion to Stay - 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 hereby moves this Court for an Order reentering the stay this Court ordered on September 7, 2006 for reasons that Petitioner has not yet exhausted his claims in state court. He also asks this Court to clarify its appointment v. DORA SCHRIRO, et al., Respondents. CURTIS GRAYLIN SIMMONS, Petitioner, D.C. CV-03-02172-PHX-NVW PETITIONER'S MOTION TO REIMPOSE STAY AND FOR CLARIFICATION OF COUNSEL'S ROLE

order so that undersigned counsel may assist him in exhausting his state claims. Reasons are explained more fully in the following Memorandum of Points and Authorities. RESPECTFULLY SUBMITTED this 21st day of May, 2007.

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

Case 2:03-cv-02172-NVW

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MEMORANDUM OF POINTS AND AUTHORITIES
Petitioner has Not Exhausted His State Remedies Mr. Simmons respectfully asks this Court to reimpose its stay so that he may pursue his unexhausted claims in state court, Rhines v. Weber, 544 U.S. 269, 273-274 (2005). In

Baldwin v. Reese, 541 U.S. 27, 32 (2004) the Court said a state prisoner must "fairly present" his claim in the appropriate state courts to alert them to the federal nature of the claims and see, Castillo v. McFadden, 399 F.3d 993, 1001 (9th Cir. 2005). In this case the superior court denied Mr. Simmons' Motion for Reconsideration but his claim does not end there. decision is subject to appeal. In order to exhaust his state The

claims he must seek relief in the state court of appeals, Swoopes v. Sublett, 196 F.3d 1008, 1009-1010 (9th Cir. 1999). B. Appointment of Counsel Without the assistance of counsel it will be difficult if not impossible for Petitioner to "fairly present" his claims to the state court of appeals. 16, 2007 it said, inter alia: Gail Natale, Petitioner's counsel in the prior appeal, is appointed under the Criminal Justice Act as counsel for Petitioner for the proceedings in this court ordered below. He respectfully asks this Court specifically to permit counsel to In this Court's Order filed May

23 assist Mr. Simmons to "fairly present" and exhaust his state 24 claims. 25 26

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J.D. Nielsen, who represents Respondent, does not oppose this request. RESPECTFULLY SUBMITTED this 21st day of May, 2007.

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

I hereby certify that on May 21, 2007 7 I electronically transmitted the attached document to the Clerk's 8 Office using the CM/ECF registrants 9 and 10 COPIES of the foregoing mailed/emailed this 21st day of May, 2007, to: 11 J.D. Nielsen, Assistant Attorney General 12 Attorney General's Office [email protected] 13 Curtis Graylin Simmons 14 5822 South 17th St. Phoenix AZ 85040 15 s/Anita Jundy 16 17 18 19 20 21 22 23 24 25 26

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Case 2:03-cv-02172-NVW

Document 43

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