Free Order on Motion to Stay - District Court of Arizona - Arizona

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 27 28 The court has considered Petitioner's Motion for Stay of Federal Proceedings to Give Petitioner the Opportunity to Return to State Court to Exhaust His Claims (doc. # 30) and his Motion Pursuant to Criminal Justice Act to Continue Appointment of Counsel to Represent Petitioner in State Court Proceedings (doc. # 31). The mandate of the Court of Appeals (doc. # 26) dated August 2, 2006, affirmed the judgment of this court on the issues addressed by this court but found that this court erred in then dismissing Petitioner's 28 U.S.C. § 2254 petition "without considering Simmons' due process claim based on the state trial court's failure to rule on the motion for reconsideration of his first PCR petition." (Neither the Magistrate Judge nor this court understood the petition to raise such a claim, and Petitioner's objections to the Report and Recommendation of the Magistrate Judge did not raise that objection. See 28 U.S.C. § 636(b)(1) (district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made").
Case 2:03-cv-02172-NVW Document 35 Filed 09/07/2006 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Petitioner, ) ) vs. ) ) Dora Schriro; Arizona Attorney General, ) ) ) Respondents. ) ) Curtis Graylin Simmons,

CV 03-2172 PHX NVW ORDER

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 27 28

However, at the status conference in this court on August 31, 2006, counsel for Respondent acknowledged that he had not pointed out this waiver to the Court of Appeals.) The Court of Appeals remanded to this court with instructions "to stay this portion of the § 2254 petition in order to give the state court an opportunity to correct its constitutional error." Accordingly, this court will order stay of these proceedings in accordance with the mandate of the Court of Appeals to allow Petitioner to renew his request for ruling in the Superior Court of Maricopa County on his motion for reconsideration of the denial of his first PCR petition. Because the Superior Court must rule on the motion within 60 days, this court will require a status report to be filed within ten days of a ruling by the Superior Court or by December 6, 2006, whichever is first. Petitioner's Motion Pursuant to Criminal Justice Act to Continue Appointment of Counsel to Represent Petitioner in State Court Proceedings (doc. # 31) also seeks appointment by this court of attorney Gail Natale to represent him in the further proceedings in the Superior Court. Ms. Natale was appointed as Petitioner's counsel in the Court of Appeals. The motion will be denied because this court does not appoint counsel to represent prisoners in the state court and because Petitioner explicitly waived his right to assistance of appointed counsel when he originally filed his first PCR in the Superior Court. This court notes that Ms. Natale has been effective in representing Petitioner in the Court of Appeals. The Superior Court may decide to appoint her has counsel for further proceedings in that court. IT IS THEREFORE ORDERED Petitioner's Motion for Stay of Federal Proceedings to Give Petitioner the Opportunity to Return to State Court to Exhaust His Claims (doc. # 30) is granted. IT IS FURTHER ORDERED that: 1. 2. This action is stayed until further order of this court. Petitioner shall file a proper motion in the Superior Court of Maricopa County within 21 days of the date of this order requesting a ruling on his -2Case 2:03-cv-02172-NVW Document 35 Filed 09/07/2006 Page 2 of 3

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 27 28 3.

motion for reconsideration of the denial of his first PCR petition in that court. Petitioner shall file a status report with this court within ten days of a ruling by the Superior Court on his motion for reconsideration of the denial of his first PCR petition in that court or by December 6, 2006, whichever is first. IT IS FURTHER ORDERED that Petitioner's Motion Pursuant to Criminal Justice Act to Continue Appointment of Counsel to Represent Petitioner in State Court Proceedings (doc. # 31) is denied, without prejudice to renewal of that motion in the Superior Court. IT IS FURTHER ORDERED that the clerk serve a copy of this order upon attorney Gail Natale in addition to serving it upon Petitioner directly. DATED this 6th day of September 2006.

-3Case 2:03-cv-02172-NVW Document 35 Filed 09/07/2006 Page 3 of 3