Free Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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Tonya J. McMath State Bar #012281 111 West Monroe Suite 1650 Phoenix, Arizona 85003 (602) 254-5544 Attorney for Petitioner

UNITED STATES DISTRICT COURT 7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 Counsel for Petitioner, Tonya J. McMath, respectfully requests a determination of counsel 16 in this case for the following reasons: 17 1. 18 Custody pursuant to 28 U.S.C. § 2254 ("Habeas Petition") on November 25, 2002; 19 2. 20 proceedings until an evidentiary hearing was scheduled to be conducted on February 19, 2004, on 21 which date the Magistrate Judge appointed undersigned counsel to represent Petitioner "for the 22 limited purpose of the Evidentiary Hearing set for March 5, 2004 at 1:30 p.m." pursuant to Rule 23 8(c) of the Rules Governing Section 2254 Cases in the United States District Courts; 24 3. 25 conduct limited discovery preparatory to the evidentiary hearing. On April 15, 2004, on 26 Petitioner's motion, the Magistrate Judge entered an Order that undersigned counsel's previous 27 appointment be "extended for purposes related to the evidentiary hearing in this case, including 28 Subsequently, on March 30, 2004, undersigned counsel was granted leave to Petitioner continued to represent himself throughout the pendency of the Petitioner filed his pro se Petition for Writ of Habeas Corpus by a Person in State GREGORY ALLEN WATERMAN, ) ) Petitioner, ) ) vs. ) ) DORA B. SCHRIRO, et al., ) ) Respondents. ) ) ) ____________________________________) No. CIV- 02-2368-PHX-JWS (DKD) AMENDED MOTION FOR DETERMINATION OF COUNSEL

(Third Request)

Case 2:02-cv-02368-JWS

Document 105

Filed 05/11/2006

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conducting limited discovery" pursuant to Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Court; 4. Following the evidentiary hearing on June 23, 2004 and the issuance of the

Magistrate Judge's Report and Recommendation ("R&R") on November 4, 2004, undersigned counsel filed a Motion for Determination of Counsel and To Extend Time for Filing Objections to Magistrate's R&R on November 8, 2004. On November 12, 2004, the Magistrate Judge entered an Order extending undersigned counsel's appointment for the additional "purpose of filing objections to the Report and Recommendation, and for further proceedings, if necessary"; 5. On March 7, 2005, undersigned counsel filed Objections to the Magistrate Judge's

R&R, and on May 25, 2005, the District Court entered its Order and Judgment dismissing Petitioner's Petition for Writ of Habeas Corpus. 6. Thereafter, on June 16, 2005, undersigned counsel filed a Motion for Relief from

Order and Judgment Pursuant to Rule 60(b) ("Rule 60(b) Motion"). Having not yet received a ruling on that motion, on June 21, 2005, undersigned counsel filed a Motion to Entertain Motion for Relief from Order and Judgment Pursuant to Rule 60(b), Motion for Certificate of Appealability ("COA") to preserve Petitioner's rights to review of the District Court's Order and Judgment dismissing his Petition for Writ of Habeas Corpus, and Motion for Determination of Counsel on Appeal1. 7. On June 24, 2005, the District Court granted in part, and denied in part, the Motion

for COA. A Notice of Appeal was filed on Petitioner's behalf that same date. 8. On July 8, 2005, the District Court granted Petitioner's Rule 60(b) Motion. On or

about July 19, 2005, undersigned counsel filed in the Ninth Circuit Court of Appeals a Motion for Limited Remand to District Court and Stay of Briefing Schedule ("Motion for Limited Remand") to permit the District Court to re-enter its ruling vacating its earlier Order and Judgment in the

So far as appears from the District Court docket and undersigned counsel's file, this motion was never ruled upon.

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record upon remand when jurisdiction again was vested in the District Court. On November 29, 2005, the Ninth Circuit Court of Appeals entered its Order granting Petitioner's Motion for Limited Remand and remanding the case "to district court so it may rule upon appellant's motion for relief of judgment." 9. On May 4, 2006, the District Court entered its Order rejecting the Magistrate

Judge's R&R,2 finding Petitioner's Habeas Petition to have been timely filed, and returning the matter to the docket of the Magistrate Judge for further proceedings.3 10. Undersigned counsel is uncertain whether the Court now intends her appointment

to be extended to encompass further proceedings on the merits of Petitioner's Habeas Petition unrelated to the statute of limitations issue underlying the evidentiary hearing on which undersigned counsel originally was appointed or whether the Court intended Petitioner to return to his previous pro se status upon final disposition of the Magistrate Judge's R&R; and 10. On July 5, 2005, believing her representation of Petitioner at the district court level

to have been terminated at that time, on July 5, 2005, undersigned counsel submitted her final CJA 20 voucher for payment, on which she since has been paid. As such, should the Court desire undersigned counsel's continued representation of Mr. Waterman for all further proceedings at the district court level, issuance of a new CJA 20 voucher likely will be required. For the foregoing reasons, counsel for Petitioner, Tonya J. McMath, respectfully moves this Court for a determination of counsel regarding further proceedings on Petitioner's Habeas Petition at the district court level. Respectfully submitted this 11th day of May, 2006.

The District Court's most recent Order did not address its earlier Order granting Petitioner's Rule 60(B) Motion at a time when the District Court lacked jurisdiction to do so as the case was pending appeal. This issue forms the subject of a separate Motion to Re-enter Rule 60(b) Relief filed contemporaneously herewith. Due to the retirement of the originally assigned Magistrate Judge, Morton Sitver, a Minute Order was entered on May 4, 2006 referring the matter to Magistrate Judge David K. Duncan.
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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 J. D. Nielsen Assistant Attorney General 1275 West Washington Phoenix, AZ 85007 By /s/ T. McMath Copy of the foregoing filed/delivered via the CM/ECF system this 11th day of May, 2006 and delivered to the following ECF registered recipients:

By /s/ Tonya J. McMath Tonya J. McMath Attorney for Petitioner

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