Martinez v. Shinn

2 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Cody James Martinez, No. CV CV-21-163-TUC-RM 10 Petitioner, v. ORDER TO SHOW CAUSE David Shinn, et al., 13 Respondents.

15 Petitioner Cody James Martinez, who is confined in the Arizona State Prison Complex in Florence, Arizona, has filed a Petition for Writ of Habeas Corpus and Motion for Stay of Execution and Application for Appointment of Counsel [Capital Case] (Doc. 1) (“Petition”). The Petition indicates it was served on Respondents, although counsel for Respondents has not yet appeared in this action.

20 On August 2, 2021, the Court ordered Petitioner to show cause why the Petition should not be dismissed for failure to exhaust, noting Petitioner’s sentence of death had been vacated and that Petitioner’s resentencing was pending in Pima County Superior Court. (Doc. 6.) Petitioner filed a response to the order to show cause (“OSC”) on August 15, 2021, asserting that the filing of a preliminary petition “avoids unnecessary argument later about statutes of limitation” and suggesting that the stay and abeyance procedure available under Rhines v. Weber, 544 U.S. 269 (2005), might be the best course of action pending resentencing in this case. (Doc. 7.) The Court will direct Respondents to reply to Petitioner’s OSC response.

1 Accordingly, 2 IT IS ORDERED that within five (5) days of the date this Order is filed, Petitioner must serve Respondents with the Court’s August 2, 2021 Order to Show Cause and his 4) August 15, 2021 Response.

5 IT IS FURTHER ORDERED within ten (10) days of the date this Order is filed, | counsel for Respondents must file a notice of appearance.

7 IT IS FURTHER ORDERED that no later than October 8, 2021, Respondents | must file a file a Reply to Petitioner’s response to the OSC.

9 Dated this 21st day of September, 2021. ll ff 12 am 7 pDfr □□ 13 TD 4 tigi □ □□ Honorable Rostsiary □□□□□□□ 14 United States District □□□□□