Free Order of 9th Circuit - District Court of Arizona - Arizona

5** _ . V
UNITED STATES COURT OF APPEALS D
FEB 22 ZUU7
FOR THE NINTH CIRCUIT may A. cmsssom, ctsnx
U. S. COURT OF APPEALS
CURTIS GRAYLIN SIMMONS, Nos. 04-I7 1 53
Petitioner - Appellant,
D.C. No. CV—03-02l72-NVW-
v. PHX
I O`! iijoiiléiisi. sici1iaiRo,iieta1.,I I Y I I I I I I I
ORDER _
. · Respondents - Appellees.
Before: ALARCON and McKEOWN, Circuit Judges, and HOLLAND ",
District Judge.
Counsel for Petitioner—Appellant Simmons moves for clarification of her
status and for determination of counsel. Counsel was appointed to represent
Simmons in connection with his appeal from the denial of a petition for habeas
corpus pursuant to 18 U.S.C. § 2254. The appeal was decided by memorandum A
decision filed June 30, 2006. The decision of the district court was affirmed in
part, reversed in part, and the case remanded for further proceedings in district
· court and state court as outlined in the memorandum disposition. After remand,
. * The Honorable H. Russel Holland, Senior United States District A
Judge for the District of Alaska, sitting by designation. A _
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` Case 2:03-cv-02172-NVW Document 38 _ Filed O3/O2/2007 Page 1 of 2

_ the case appears to have proceeded in accordance with the remand. Proceedings in
the district court have been stayed, and further proceedings in state court were
initiated but have not yet been concluded. r i
The focal point of the instant. motions is that Simmons is unrepresented in
the state court proceedings. The district court declined to appoint counsel to i
-_ - - -rapreaapr Siarrrraps irrrparptata aavrtprapaariiasr-- What appears ra require- roor - - -
A ercplanation is the concluding sentence of this court's memorandum decision,
which provided that "[t]he panel will retain jurisdiction over any subsequent
appeal in this case." Simmons v. Sc/trim, 187 Fed. Appx. 753, 755 (9th Cir. 2006).
‘ As stated above, counsel was appointed only for purposes ofthe appeal which has
now been decided. VVhat the court has stated in its memorandum decision as ‘
quoted above is that the same panel will take upiany "subsequent appeal" in this
case. ·
While the court is impressed with courrsel's diligence on behalf of Simmons,
_ if there is as yet no subsequent appeal-. court has no jurisdiction_oi; case. l ii l T
The matter of counsel in the ongoing proceedings is, therefore, before the district _
cotu·t and the state court. I i - i
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Case 2:03-cv-02172-NVW

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Case 2:03-cv-02172-NVW

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