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

5 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 formally requests that this Court stay the federal proceedings so that he may exhaust his remedies in state court. In its Memorandum Decision dated June 30, 2006 v. DORA SCHRIRO, et al., Respondents. CURTIS GRAYLIN SIMMONS, CV-03-02172-PHX-NVW Petitioner, MOTION TO STAY FEDERAL PROCEEDINGS TO GIVE PETITIONER THE OPPORTUNITY TO RETURN TO STATE COURT TO EXHAUST HIS CLAIMS

the Ninth Circuit: remand[ed] with instructions to the district court to stay this portion [Simmons' due process claim] of the § 2254 petition in order to give the state court an opportunity to correct its constitutional error. See also Rhines v. Weber, 544 U.S. 269 (2005), Olvera v. Giurbino, 371 F.3d 569 (9th Cir. 2004) and Kelly v. Small, 315 F.3d 1063 (9th Cir. 2003). Mr. Simmons has "good cause" for

failing to exhaust his state court remedies, i.e. the state court's failure to rule on his outstanding motion for

Case 2:03-cv-02172-NVW

Document 30

Filed 08/10/2006

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reconsideration of denial of his first PCR petition--as the Ninth Circuit identified in its Memorandum Decision. RESPECTFULLY SUBMITTED this 10th day of August, 2006.

s/Gail Gianasi Natale GAIL GIANASI NATALE Attorney for Petitioner

I hereby certify that on August 10, 2006 8 I electronically transmitted the attached document to the Clerk's 9 Office using the CM/ECF registrants 10 and 11 COPIES of the foregoing mailed this 10th day of August, 2006, to: 12 The Honorable Neil V. Wake 13 United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 524 14 401 West Washington Street, SPC 52 Phoenix, AZ 85003 15 J.D. Nielsen, Assistant Attorney General 16 Attorney General's Office 1275 W. Washington 17 Phoenix, AZ 85007 18 19 20 s/Anita Jundy 21 22 23 24 25 26 2 Case 2:03-cv-02172-NVW Document 30 Filed 08/10/2006 Page 2 of 2 Curtis Graylin Simmons #35849 ASPC--Perryville - Santa Rosa Unit P.O. Box 3500 Goodyear, AZ 85338